Leung Sai-wing and Another v. The Queen

CACC000429/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 429 OF 1971

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Coram: Huggins, Pickering and Leonard, JJ.

Date of Judgment: 10th September, 1971.

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JUDGMENT

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Huggins, J:

1. Three young men were charged before the District Court with robbery. They all pleaded guilty. The first was sentenced to be detained in a Training Centre, the second was placed on probation for three years and the third was sentenced to two years' imprisonment. The first and the third Defendants have appealed against their sentences.

2. This was a well-planned robbery. The three men at 4:30 a.m. went to premises - wearing masks. They apparently had some knowledge of the lay-out of the premises for they obtained access to the jewellery workshop through a hole in a roof that being the roof of a hut over the staircase leading to the workshop. The lower end of this staircase was securely locked. There were two employees sleeping in the workshop. They were threatened with a knife and tied with iron wire and for the next half hour these three young men ransacked the premises and then made off with jewellery valued at over $66,000. They were subsequently arrested on information. The second Defendant, who has not appealed, and the second Appellant helped the Police to recover a total of some $8,000 worth of the stolen property.

3. The first Appellant has applied for an extension of time within which to appeal. He states that he lodged notice, but with the wrong court, and when he sought to lodge a Notice with this Court it was discovered that time had run out. The Crown has not opposed the application.

4. The first Appellant has advanced as his ground of appeal that he has to support his family. He is 17 years of age and the Probation Officer's report which was before the learned District Judge indicates that he has had very little help from his family. Nevertheless, he has not been in regular employment and the reason which he advances before us carries very little weight. This is a serious offence and, in our view, a sentence of detention in a Training Centre cannot possibly be regarded as excessive. There is no merit in the appeal of the first Appellant.

5. The second Appellant complains that there was unfair discrimination between him and the other two accused in the case. In his Notice of Appeal it was suggested that the learned Judge had failed sufficiently to consider s.109A of the Criminal Procedure Ordinance. That ground has not been pursued because, clearly, since the coming into force of the Criminal Procedure (Amendment) Ordinance 1971 on 26th February, 1971, offences under s.10 of the Theft Ordinance have been excepted offences. Counsel has emphasised that the violence used in this case was limited: it was, we think, limited to such violence as was necessary in order to enable these accused persons to do what they set out to do. The fact that no actual injury was done may well have been due more to the submission of the two workmen rather than to anything else.

6. The second Appellant was the oldest of the three, he being 19 years of age. Moreover, he had previous convictions. In 1966 he was convicted on two charges of larceny and placed on probation for two years. During the currency of that order of probation he committed three further offences of larceny. He was also brought before the Court for breach of the probation order. The total effect of what was done by the Court on that occasion was that the probation order was extended for one year. It appears, therefore, that this Appellant has not taken advantage of the assistance that has been given to him in the past, although the Probation Officer says that when interviewed he showed a sense of remorse.

7. In support of his argument that there has been unfair disparity counsel has cited Reg. v. Coe⁽¹⁾ and we accept that, all things being equal, the Court should endeavour to see that the sentences on different accused are comparable, but that does not mean that the Court should not take into account factors which show that there ought to be disparity of sentence. Although an accused should not be sentenced for his past record, nevertheless his past record must clearly be taken into account. Moreover, as we have said, this Accused was the oldest of the three. Before the Court counsel cited two criminal appeal cases: LEE Kim-pui v. Reg.⁽²⁾ and NGAI Chi-keung v. Reg.⁽³⁾. Both of these were tried in 1969, before the passing of the Criminal Procedure (Amendment) Ordinance 1971, and it is significant that in the second of those two cases the learned Judge expressly said that he found no merit in what had been addressed to him by the appellant but that he found himself tied by the provisions of s.109A. The learned Judge in this case took great care in deciding what sentences ought to be imposed and, while explaining why he differentiated between them, he emphasised that there were too many cases of this kind being committed at the present time and that only a small portion of the property stolen had been recovered.

8. In our view the reasons given by the learned Judge justify the conclusion which he reached and these appeals must be dismissed.

Representation:

1st Appellant in person.

Fok for 2nd Appellant.

Duckett S.C.C. for Respondent.

10th September, 1971.

(1) (1969) 53 Cr. App. R. 66, 71

(2) Cr. App. 628 of 1969

(3) Cr. App. 681 of 1969.