R. v. Cheung Wai Ming

CACC000432/1991

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Coram: Hon. Sir Cons, V.-P., Penlington, J.A. & Hooper, J.

Date of hearing: 7 April 1992

Date of handing down judgment: 16 April 1992

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J U D G M E N T

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Hooper, J. delivered the judgment of the Court:

1. On the 5th August 1991, the applicant pleaded guilty in the District Court to one charge of aggravated burglary (1), three charges of burglary (5), (8), (12), three charges of robbery (6), (9), (16), one charge of attempted robbery (2), one charge of possession of an offensive weapon (3), one charge of going equipped for stealing (4) and 7 charges of theft (7), (10), (11), (13), (14), (15), (17).

2. Apart from the charges in relation to possession of an offensive weapon and going equipped for stealing, upon each of which the applicant received a sentence of 2 years' imprisonment, a sentence of 5 years' imprisonment was imposed in respect of each of the other offences. All sentences were ordered to run concurrently with the result that the total overall sentence which the applicant had to serve was one of 5 years' imprisonment.

3. It is against these sentences that the applicant (who was the 1st defendant in the Court below) now seeks leave to appeal. The reasons for sentence were set out by the Judge as follows:-

"D1, Cheung Wai Ming, who is 17 ¹/₂ years of age, has pleaded guilty to 17 offences, namely one of aggravated burglary, 3 burglary, 3 robbery, 1 attempted robbery, possession of an offensive weapon contrary to section 33(1) of the Public order ordinance, going equipped for stealing and 7 theft offences.

These offences were committed over the period 30 January to 23 February 1991.

He has three previous convictions, all dated this year, the relevant ones being theft and attempted theft from a vehicle on 22.4.91; and possession of an offensive weapon in June this year for which he was sentenced to detention in a Detention Centre, which sentence he is still serving.

D4, Tong Ho Ming, who is 15 ¹/₂ years of age, has pleaded guilty to his participation in three of the aforesaid offences, namely the aggravated burglary and two robberies.

He has a clear record.

D1, accompanied by D4 on three of the offences, embarked on a spree of crime over the period in question, some of the salient facts of which are that in the aggravated burglary offence D1 and D4, together with 2 others, entered the flat of a fellow school-mate and each threatened the victims with knives before stealing a camera, walkman and a quantity of gold ornaments including finger rings.

On the 6th Charge of robbery, Dl threatened the victim by pointing a knife at her at a bus stop at about 8:00 p.m., before taking her wallet which contained $3,400, two bank cards and other miscellaneous items.

D4 and two other persons acted as lookouts throughout this incident.

On the 9th Charge of robbery, Dl and D4 accompanied by two others entered a stare in Yuen Long at about 1:30 a.m. and Dl threatened the victims with a knife. The victims were thereafter tied up and the premises were ransacked by the Defendants and those accompanying them, and cash in the sum of $2,250 and nine finger rings were stolen.

The remaining offences perpetrated by D1, acting with various others, were the three burglaries which were all committed in wooden huts wherein a total of about $1,670 cash, gold ornaments and other miscellaneous items were stolen; the remaining robbery charge in which Dl threatened the victim with a knife at a pedestrian flyover at about 5:35 a.m. on her way to work, and then snatched her handbag containing cash and miscellaneous items; the 3rd and 4th Charges, namely the possession of an offensive weapon and going equipped for stealing, in respect of which DI and 2 others were found on board a taxi in Yuen Long in possession of two choppers, together with pliers, screwdrivers, an iron bar, gloves and a torch, and admitted that they were on their way to commit theft and robbery; and the 7 theft charges all involved the theft of small amounts for cash and various other items including a watch and two calculators from unattended motor vehicles.

I note from the Commissioner's Report that, after a bad start, Dl appears to be responding favourably to his present detention in a Detention Centre; furthermore that the Detention Centre programme is undoubtedly beneficial to him, and the after-care supervision would probably help him turn over a new leaf after his release.

While it is a pity to interrupt this programme which appears to be doing him good, there is no doubt in my mind that a sentence of further detention in a Detention Centre would be far too lenient and therefore inappropriate in the circumstances of this case. The robbery convictions alone merit a substantial custodial sentence in the normal way; when one adds to these the 14 other offences, together with his record, it seems to me that the public interest demands the imposition of a substantial custodial sentence.

I did give serious thought to whether a sentence of detention in a Training Centre might be appropriate but as the Commissioner has pointed out in his Report, his conviction for possession of an offensive weapon in a public place under S.33(1) of Public Order Ordinance excludes the possibility of such a sentence for persons in the 17-25 age bracket, although I must say in passing that I can see no logic in excluding such a sentence for persons under 21 years of age.

In any event, looking at the accumulation of 17 offences, and the gravity of some of those offences, and the contempt for the law and the rights of ordinary, law-abiding citizens that D1 has displayed, I have concluded that the only appropriate way to deal with him is to sentence him to a substantial term of imprisonment.

On no less than four of these offences did D1 threaten the victims with a knife before stealing their property, in domestic premises, at a bus stop, in the street and in a store, during the last of which the victims were tied up before ransacking the premises.

It is clear from the guidelines laid down by the Court of Appeal that robberies in domestic/private premises at night involving the display of weapons such as knives, and trussing up the victims will generally attract 6-7 years imprisonment after trial subject always of course to the particular facts of the case at hand.

Taking into account the accumulation of these and the other offences, against the background of his relevant previous convictions I have no doubt that the public interest demands the imposition of a substantial custodial sentence, notwithstanding his relatively youthful age of 171/2 years old.

Making due allowance for his age I have taken 61/2 years imprisonment as the appropriate starting point after trial, and giving him a substantial discount for his pleas of guilty at the outset of the proceedings I impose an overall sentence of 5 years imprisonment on him, made up as follows: 2 years imprisonment on the 3rd Charge, 2 years imprisonment on the 4th Charge, and 5 years imprisonment on each of the remaining charges, all sentences to run concurrently."

4. There are 5 Grounds of Appeal in the applicant's Perfected Grounds of Appeal but Mr Buchanan, who appears for the applicant, has now abandoned the first three and bases this application on Grounds 4 and 5 only.

5. Ground 4 is that "a totality sentence of 5 years' imprisonment was excessive from the circumstances of the applicant and the background and dates of the offences and the starting point was too high and the discount too low, taking into consideration in particular (1) the age of the applicant, (2) the pleas of guilty and (3) the reports available". In this respect, it is also argued that the judge gave insufficient weight to the mitigating factors advanced on behalf of the applicant. Ground 5 is that "in all the circumstances the sentence was wrong in principle and manifestly excessive".

6. Mr Buchanan stresses the appellant's young age of 171/2 and the length of the sentences, 5 years' imprisonment, pointing out that the applicant, at the time when the imprisonment sentence was passed, was already serving a sentence of detention in a training centre, which had been imposed on 26th June 1991. The sentences of imprisonment had effectively cut short his rehabilitation because he has now been transferred to prison.

7. Mr Buchanan, whilst feeling that the judge may well have imposed a sentence of detention in a training centre, if that course had been open to him, instead of being barred by s.33(1) of the Public Order Ordinance, concedes that the judge was bound to impose a term of imprisonment in view of the number and seriousness of the offences. Nevertheless, Mr Buchanan stresses the comparatively short period over which the offences had been committed, i.e. some three weeks from 30th January 1991 until 22nd February 1991, and the fact that the applicant was under 16 at the time the first five offences were committed.

8. Although some of the sentences maybe considered severe in isolation, Mr Buchanan does not criticize the judge in respect of any of the individual sentences. 'It is his criticism that, taking into the account the principle of totality, which the learned judge did, the sentences imposed should have come to no more than 4 years' imprisonment. In this respect in addition to the young age of the applicant and the short period of time during which the offences were committed he stresses the pleas of guilty, the fact that nobody suffered injuries, and the fact that the progress report from the detention centre was satisfactory.

9. In the circumstances he argues that the starting point of 6¹/₂ years was too high and insufficient discount had been allowed in the applicant's favour.

Mr Coghlan for the Crown supports the sentences having regard to the seriousness of the offences and the number of them.

10. In our judgment, the learned judge properly took into account all the relevant factors. If anything, his starting point was, on the lenient side, having regard to the seriousness of the offences and the number of them. Bearing in mind that his starting point already took into account the young age of the applicant the discount of 18 months cannot be described as "too little".

11. In the circumstances, we cannot say that the sentences imposed by the judge, having regard to the principle of totality, were either manifestly excessive or wrong in principle.

For these reasons the application for leave is refused.

Representation:

Mr Coghlan, Senior Crown Counsel, for Crown.

Mr R.B. Buchanan, inst'd by M/s Tang, Wong & Cheung, for accused.