Yim Tsz Shing and Another v. The Queen

CACC000480/1970

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.480 OF 1970

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Coram: Rigby, C.J. in court.

Date of Judgment: 24 September 1970

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JUDGMENT

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1. This is a case which, I am bound to say, has caused me a great deal of anxious consideration.

2. The two appellants, both of whom are between the ages of 16 and 17, pleaded guilty to the charge preferred against them of robbery with aggravation. It is to be said at once in their favour that when questioned by the police they freely and frankly admitted the commission of this offence.

3. The facts of the case were that shortly before midnight on the 25th of July, the victim in this case, who resided on the fourth floor of premises in Hennessy Road, opened the door of his premises in order to place some rubbish in the corridor. He had no sooner opened the door than three persons rushed into the house, brushing him aside. They then proceeded to cover his face with a towel, tied up his hands and pushed him into the kitchen. At the time they entered all three of them, according to the facts as put before the magistrate, were armed with knives. After he had been pushed into the kitchen it would appear that these three persons searched the promises, presumably to find what they could to steal. They then returned to where he was lying tied up, and asked him if he had any more money. He replied in the negative whereupon, according to his statement, he felt some pain in his right hand. Shortly afterwards the three persons left the premises. After a brief interval the victim shouted for, and obtained, assistance and he was released from his bonds. Upon searching his premises, he found that a sum of $55 had been stolen, together with his camera, a portable record player, his wrist watch, and two pieces of cloth. He was sent to the hospital for examination and it was found that there were lacerations - and it is right to say that they appear to have been minor lacerations - on his right hand. It would seem an irresistible inference that those lacerations were inflicted with some sharp instrument and inflicted at the time when his eyes had been covered and he was lying there tied up. Now, that occurred on the 25th of July.

4. On the 28th of July a party of police, apparently acting on information received, went to certain premises in Nathan Road where they arrested the two appellants. Upon interrogation they freely and frankly admitted the commission of this offence. They were taken to the police station, placed on an identification parade, and the victim identified the second appellant as one of the two persons who had entered his premises that night.

5. The appellants - again it is to be said in their favour - gave every possible assistance to the police in the recovery of the stolen property. They took the police to different premises where the record player and the cloth were recovered in one place and the camera was recovered in a pawn shop. All that was not recovered were the watch and, of course, the money which had been stolen.

6. When the case came before the learned magistrate he very properly - as indeed he was bound to do - called for reports from the probation officer and from the Commissioner of Prisons, who is in charge of training centres, so that he might acquaint himself with the background and antecedents of these two young persons with a view to deciding what was the appropriate punishment to be imposed. The probation officer's reports were put before the learned magistrate upon the resumed hearing of the case. Both these youths have never been in trouble before and they have clear records. As regards the first appellant, it would appear that he has been living with his parents. The probation officer's report is not a bad report. As regards the second appellant, he comes from the island of Cheung Chau where he had previously lived with his father who appears to be an entirely respectable person.

7. On those facts the learned magistrate imposed an order for corporal punishment of nine strokes for each appellant. It is against that sentence that the appellants now appeal.

8. Mr. Bernacchi, who appears for both appellants, has pointed out that they have clear records and he has stressed the fact that they are both just over sixteen. Mr. Bernacchi said that these were boys who would deserve a good thrashing by their parents or by their teachers for the wrong that they had done. He submits, however, that corporal punishment imposed in the precincts of a prison by a prison warder is an entirely different matter from that imposed either by the boys' parents or by their teacher. For myself, let me say at once, I am a firm believer in corporal punishment, but such a sentence requires to be imposed sparingly and only in the appropriate type of case, for example, offences involving the use of violence or sexual offences against young girls. For my part, I am bound to say that in this particular case I would not have imposed corporal punishment. But the matter does not end there; I have to decide whether the learned magistrate was wrong in the exercise of his discretion in imposing corporal punishment in these two cases. for the benefit of society, to make a deterrent example of offenders who come before these courts. In this case it is clear that all three youths were armed with knives. They entered the promises, about midnight, of an apparently respectable law-abiding citizen, forced their way into those promises, tied up the occupant, blindfolded him, and then proceeded to ransack his premises taking what they could find. It is, in my view, the fact that they were in possession of knives which places a particularly serious emphasis on this case. Bearing that factor in mind, it seems to me that when young persons of the age of the two accused in this case take it upon themselves, when armed with offensive weapons, to force their way into the house of inoffensive and law-abiding citizens of the Colony for the purpose of robbing the occupants of those premises of their possessions and belongings they must be prepared to take the consequences of their acts. In those circumstances, I have come to the conclusion that I am not prepared to interfere in this case, subject to the extent that the order for nine strokes will be reduced to one of six strokes. Subject to that, this appeal is dismissed.

Representation:

Bern. Q.C. & P. Woo (T.S. Tong & Co.) for both Appellants.

Stratton, D.P.P. for Crown/Respondent.

(Judgment delivered)