Attorney General v. Wong Sai Cheong

CAAR000001/1985

Lift robbery - pleaded guilty - 18 years old - two previous convictions: burglary 1981, Detention Centre; loitering and triad member 1982, Training Centre.

Tariff sentence for lift robbery with some violence 5 years immediate custodial sentence. Sentence to Drug Addiction Treatment Centre manifestly inadequate. On review Drug Addiction Treatment Centre order set aside - 3 years imprisonment imposed in lieu.

IN THE COURT OF APPEAL

BETWEEN

Coram: Li, V.-P., Yang & Barker, JJ.A.

Date of Hearing: 19th April, 1985

Date of Judgment: 19th April, 1985

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JUDGMENT

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Li, V.-P.:

1. This is an application for review of sentence on the ground that the sentence passed upon the respondent is manifestly inadequate.

2. The respondent pleaded guilty to a charge of robbery. It was one of the common things that happened from time to time in this part of the world. It was a lift robbery.

3. Sometime after mid-night on the 12th of March last ,year, a lady returned home with her 12 year-old son. They entered the lift. The respondent with another person went into the lift, forced the door open, put an arm round the neck of the lady. His accomplice had a 14 inch melon knife to threaten the mother and son. In the process of this the two of them relieved the mother and son of $200, a gold necklace with a pendant and two gold rings. They managed to escape. On information the respondent was subsequently arrested. He pleaded guilty to the charge.

4. Before passing sentence the trial judge had obtained a Probation Officer's Report and a Training Centre Report. The Probation Officer's Report indicates that he had an unhappy childhood. His father deserted the family when he was 2 years old and the mother had to fend for herself. The mother re-married some years ago. But the respondent did not get on with the step-father. He had to leave school early. He changed from job to job. He did not seem to have the inclination to keep on with his work and employment. Some years ago, he co-habited with a young woman. Out of this co-habitation a young son was born. As they could not afford to support the child, this young baby was put up for adoption.

5. The applicant had at least two previous convictions; one of burglary in 1981 for which he was ordered to be detained in the detention centre. He committed another offence of loitering in 1982 for which he was bound over and convicted of being a member of a triad society for which he was sent to the training centre. It cannot be said that the respondent had not been given a chance to reform himself at all. Apparently, the period he spent in the training centre did not assist him to turn a new leaf. He committed the present offence of robbery.

6. In his reasons for sentence, the trial judge mentioned these two previous convictions and said that the respondent was 18 years of age. This means that he was above 14 when the two previous offences were committed. Nonetheless, he was given a chance. The judge continued to say that the training centre report revealed the respondent was a drug addict. Accordingly, the judge remanded him for a treatment centre report which confirmed that he was a suitable candidate for such admission. It is only for that reason that the judge ordered that he be sent to the drug addiction treatment centre.

7. Learned counsel for the applicant concedes that he is not arguing that the review should be allowed on the ground of the sentence being wrong in principle. He merely submits that the sentence to the drug treatment centre is manifestly inadequately. Miss Toh, on the other hand, says that we should not interfere with the judge's discretion, albeit the sentence is lenient. She also says that the judge obviously had the guidelines of previous precedents in mind and that the sentence is not manifestly inadequate having regard to all the relevant reports in respect of the respondent.

8. This Court feels that the tariff sentence in a normal case of lift robbery with some degree of violence and a lethal weapon used should. merit a sentence of 5 years in the event of a full trial. An, allowance is given for a plea of guilty. We also give a discount on an application for have come to the conclusion that having regard to the previous e review. We have come to the comclusion that taving regard to the previous authorities - especially in applications for review 4, 5 and 6 - the sentence is manifestly inadequate in the circumstances. The order to a drug treatment centre, although not wrong in principle, should be made only in very rare and exceptional circumstances. In the present case, there was some degree of violence. It was an in-house robbery in a lift. Certain degree of violence had been used. It was done not by one person. It was done by two persons, one of whom had a melon knife. It must have been a very frightening experience for the mother and in particular, the 12 year-old boy.

9. For these reasons, we allow the application. The order for drug addiction treatment centre is set aside and in substitution therefor we imposed a sentence of 3 years imprisonment.

Representation:

Mr. C. Newall (Legal Dept.) for appellant

Miss Ester Toh (D.L.A.) for applicant