Lau Kwok-fai and Others v. The Queen

CACC000519/1979

Coram: Roberts, C.J., Leonard & Cons, JJ.

Date of Judgment: 17 September 1979

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JUDGMENT

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Roberts, C.J.:

1. The appellant, LAU Kwok-fai, and two other young men were charged before Judge Hopkinson in the Victoria District Court.

2. The first defendant, who is the appellant to-day, pleaded guilty to four charges, two of robbery, one of attempted robbery and one of administering chloroform.

3. The second defendant pleaded not guilty to two charges of robbery and one of attempted robbery, but was convicted of all three.

4. The third defendant, whose appeal against sentence was withdrawn to-day, pleaded guilty to two charges of robbery and one of attempted robbery.

5. The first and third defendants were sentenced to three years' imprisonment on each of the charges to which they pleaded guilty and the second defendant was sentenced to detention in a detention centre.

6. I will refer very briefly to the facts of the offences to which the appellant pleaded guilty.

7. The first charge was concerned with a robbery in a shoe shop in which the third defendant was a shop assistant. On 3rd January, the appellant entered the shop, pointed a knife at the throat of a shop assistant and demanded money. The third defendant then handed over the takings to the appellant and the third defendant and the shop assistant were tied up. The appellant left with about $5,000.

8. The second offence, the attempted robbery took place on 12th January, at the surgery of a Doctor Wong. The second defendant was receiving treatment in Doctor Wong's surgery when the appellant went in to see the doctor, produced a knife, pointed it at the doctor's neck and demanded money. Two nurses saw what was happening, raised the alarm, and the appellant and the other two defendants ran off without having stolen anything.

9. The third charge dealt with a robbery which took place at the clinic and home of a Chinese herbalist on 19th January. The three defendants entered the clinic, two of them, one of whom was the appellant, produced knives and demanded money. A substantial quantity of money was handed over to them and they also took some gold ornaments. The appellant, in addition, put a chloroform-soaked paper on the face of the doctor, rendering him unconscious.

10. None of the three defendants had any previous record. But the District Judge, in our view quite rightly, took a very serious view of these offences, in spite of their young ages. Each offence involved an invasion of premises and threats with knives. The third involved, in addition, the administration of chloroform.

11. The only substantial factor which can be urged in favour of the appellant, apart from the fact that he has not been in trouble before, is his age. We certainly have no doubt that, had he been an adult, the sentence of three years' imprisonment imposed on him would have been far too low.

12. However, the general principle, which is enshrined in the Juvenile Offenders Ordinance, is that young persons (re those below 16 years of age) should not be sentenced to imprisonment if they can suitably be dealt with in any other way. Since the appellant was born on 17th March, 1963 and was, therefore, a few weeks over the age of sixteen years when he was sentenced, he is not a "young person" within the meaning of the Juvenile Offenders Ordinance.

13. Counsel has asked us to say, however, that he should be treated in the same way as if he were technically a juvenile offender. He reminds us that the offences themselves were committed in January, when the appellant was fifteen years and ten months, and that if the District Judge had been prepared to accept the plea of guilty which the appellant wished to tender in February this year, the District Judge would then have been obliged to deal with him in accordance with the Juvenile Offenders Ordinance.

14. Counsel also drew our attention to a disparity in sentences between the second defendant and the appellant The second defendant was aged eighteen years and four months at the time of the offences, and it might, therefore, have been expected that he would have been regarded as ...(illegible) prime mover in them in view of the fact that his companions were both much younger than himself. This factor was considered by the District Judge but he seems to have taken the view that, although the second defendant planned the attempted robbery and the last robbery and helped to dispose of the stolen goods, he was not an active participant but only a watcher and should therefore have been treated more leniently than the others.

15. We are not, of course, asked to decide as to whether or not the sentence imposed on the second defendant was a proper one. As to this we should say no more than that we think he was singularly fortunate, and that, if there was disparity, it was in his favour rather than against the other two accused.

16. Not without reluctance, in view of the careful planning and ruthless execution of these robberies and of the attempted robbery, we have come to the conclusion that we should give leave to appeal against sentence to the appellant and that we should substitute for the sentence of three years' imprisonment a sentence of detention in a detention centre since it is only in extreme cases that a youth of just sixteen should be sentenced to a substantial term of imprisonment.

17. We hope that this sentence will bring home to the appellant the seriousness of the offences which he has admitted having committed, and that the taste which he has had of imprisonment in an ordinary institution may help to deter him from repeating the sort of conduct which has brought him before the court on this occasion. We therefore quash the concurrent sentences of three years' imprisonment and substitute a sentence of detention in a detention centre.

Representation:

Lee, Q.C. & R. Liu (D.L.A.) for 1st and 3rd appellants

Miss M. Ip for crown