The Attorney General v. Chan Kwok-wah

CAAR000011/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

APPLICATION FOR REVIEW NO.11 OF 1972

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Coram: Rigby, C.J. and Huggins & Leonard, JJ.

Date of Judgment: 19th October, 1972.

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DECISION

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Rigby, C.J.:

1. This is an application by the Attorney General, under section 81A of the Criminal procedure Ordinance to review a sentence imposed by a District Court Judge on the ground that such sentence was manifestly inadequate; leave to apply for the purpose of making the application was granted by the single judge.

2. The facts may be briefly stated. On the afternoon of the 2nd July, 1972, the respondent and another man entered a fashion shop in Chatham Road, Kowloon, and there proceeded to terrorize and rob the sales staff and a customer who was in the shop. The respondent had a knife in his hand with which he threatened the occupants of the shop. One sales girl was compelled to hand over her wrist watch; a male tailor to hand over 100 dollars and a customer, who was in the shop, the sum of $420. On leaving the shop, a hue and cry was set up and the robbers chased. The respondent turned and threatened one of his pursuers with the knife but was finally over-powered and arrested. Those were the brief facts.

3. The respondent is aged 26 years; he has two previous convictions but both of them were in respect of offences committed eight years ago when he would then have been 18 years of age. In January 1964 he was convicted of simple larceny and bound over to be of good behaviour for twelve months. In November 1964, he was convicted of three charges of robbery with aggravation and sent to a training centre. Upon conviction, the learned trial judge very properly called for a probation officer's report. On the resumed hearing that report was before him. It was a report which was generally favourable to the respondent and indicated that the respondent, in a moment of weakness, had been persuaded to commit this offence by the other person who was with him. The learned trial judge, whilst expressing the view that this was the type of offence which required a substantial prison sentence, went on to say that the respondent had kept out of trouble since 1964 and, apart from this solitary lapse, appeared to have led a useful life and was a reformed character. He went on to express the view that if the respondent was sent to prison he would probably lose hope in his capability to reform. In those circumstances and for those reasons, the learned trial judge made an order placing the respondent on probation for a period of eighteen months. It is against that order that the Attorney General has applied for a review on the grounds that, in the terms of the relevant section itself, the sentence was "manifestly inadequate".

4. For the reasons which the learned trial judge has himself stated, the order made by him in this case may well have been appropriate in different times but the courts must now recognize the fact that there has been a substantial increase in crimes of violence and robbery committed by young persons. It is a well-accepted and well-recognized principle of sentencing policy that where crimes of a particular kind are prevalent - and becoming increasingly prevalent - either generally or in a particular area, then measures which at other times might have been appropriate - and, indeed, proper - to deal with offenders convicted of such crimes, must be reconsidered and a different method of approach adopted. Wearing these factors in mind, we are satisfied that the sentence imposed in this case was manifestly inadequate. In our view the appropriate sentence should be one of three years' imprisonment. But we bear in mind that the respondent, through no fault of his own, was set at liberty by the trial court and he has now suffered the additional penalty of being brought back to appear before this court. That is a matter which the Solicitor General, upon an earlier hearing of these proceedings, conceded was a factor which this court ought fairly and properly to take into consideration in favour of a convicted person when interfering with a sentence or order made by a lower court.

5. The order made by the lower court must be set aside and in lieu thereof we now impose a sentence of two and a half years' imprisonment.

Representation:

Sneath, S.G., Q.C. & Harte, C.C. for Applicant.

M. Asome (W.K. Lore & Co.) assigned for Respondent.