The Queen v. Lau Wai Hung and Another

CACC000477/1986

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. Li, V.-P., Hon. Yang, J.A. and Hon. Penlington, J.

Dates of hearing: 10th & 17th December 1986

Date of delivery of judgment: 17th December 1986

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JUDGMENT

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Penlington, J.

1. These are applications for leave to appeal against sentence on charges of robbery and malicious wounding.

2. The two applicants took part, with one other person, in the robbery of the Wah Kiu Goldsmith Shop in Kowloon on the 2nd June 1986. At the time there were three female customers in the shop and while they were being shown ornaments, the applicants and the other man burst into the shop wearing dark glasses. The 1st applicant was armed with a beef-knife, the 2nd applicant with a monkey wrench, the other man with an imitation pistol. The 2nd applicant broke open display cases containing gold ornaments which had the effect of activating the burglary alarm which began to ring. They all then panicked and made their escape. However, in the course of doing so, the 1st applicant struck at one of the shop assistant's head with his knife. The shop assistant attempted to shield himself and his hand was also cut. While the injuries did not leave any permanent disability, they did leave scaring and the fact that he was so attacked about the head with a knife is obviously a serious matter.

3. On the 6th of June, some 4 days later, the two applicants surrendered themselves to the Mongkok Police Station. They have pleaded guilty at all stages and offered to give information to the  police concerning the other culprit. As it turned. out that information or their assistance was not required. He was also arrested and was convicted after trial and was sentenced to 9 years' imprisonment. The 1st applicant received six years and the 2nd applicant five years, the difference between them being due to the fact that it was the 1st applicant who had carried out the attack on the shop assistant.

4. Mr Hampton, with his usual eloquence and attention to detail, has endeavoured to persuade us that the circumstances here are exceptional and that we should not consider ourselves bound by the dicta in A.G. v. Poon Chi Tak, Application for Review No. 14 of 1986, where this Court said that youth In itself was not sufficient, in cases of serious robbery, for a Court to impose anything else but a substantial sentence of imprisonment. Here he said there are other factors in favour of the applicants which do distinguish this case. These are that both applicants are young, 19 years of age, the 1st applicant somewhat younger by three months, they have clear records, they stated that they were motivated by the fact that one of them had a family member who required medical treatment. They pleaded guilty at a very early stage and, above all, perhaps, they voluntarily surrendered themselves some 4 days after the robbery and offered assistance to the police.

5. We do take those factors into account, as indeed did the trial judge. He imposed a sentence of 9 years' imprisonment on the culprit who had pleaded not guilty and that seems to be about right, taking into account the guidelines in the wellknown case of  Mo Kwong- sang ⁽¹⁾. Both applicants, therefore, have been given a very substantial discount, while the 1st applicant, received a slightly higher sentence because he was the one who actually inflicted the injuries with the knife.

6. At the first hearing of these applications we called for training centre reports which were favourable and if the applicants had been convicted only of robbery, albeit of a goldsmith shop, we may well have been inclined, in view of the very strong mitigating factors, to have substituted training-centre orders. However, the attack on the shop assistant was vicious even if done in panic. Because of that we do not consider these sentences were wrong in principle or manifestly excessive and the applications for leave to appeal are refused.

(1)    (1981) H.K.L.R. 610

Representation:

Mr Gordon Hampton (D.L.A.) for both Applicants

Mr I.G. Cross, S.A.C.P. for Respondent