The Attorney General v. Shum Shun-hong

CACC000530/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 530 OF 1972

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Coram: Full Court (Briggs & Leonard, JJ)

Date of Judgment: 25th July 1972

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JUDGMENT

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1. This is an application for the review of a sentence by the Attorney General brought under Section 81A of the Criminal Procedure Ordinance. Leave was granted under that section by a single judge. It is the first application to come before the Court.

2. The Attorney General and the Respondent were both represented by counsel and addressed the Court.

3. The Respondent is aged 19. On June 22nd 1972 he pleaded guilty to robbery. He was put back for sentence, and on July 7th 1972, making use of his powers under Section 36(1) (b) of the Magistrates Ordinance, the Magistrate recorded a conviction against him and bound him over in the sum of $400 for two years. He imposed a condition that the Respondent should "join a sea going vessel within a month". This is the sentence we are asked to review on the ground that it is manifestly inadequate.

4. The facts of the case are as follows: on June 18th 1972 the Respondent together with another man, who has not been traced, threatened two persons who were on other way home from work. The Respondent and his accomplice searched the two men and stole $4, a wrist watch and an umbrella from them. They then ran away.

5. The two men who had been robbed saw the Respondent and his accomplice later that same evening. They gave chase and one of them was hurt by a rock which was thrown by one of the two robbers. Shortly after this, the two men who had been robbed tried to locate the Respondent and his accomplice but were prevented by a gang of armed youths.

6. The Magistrate accepted that while no weapon was used, the Respondent and his accomplice threatened and frightened the two men they robbed.

7. At the time the Respondent was sentenced for this offence he had been before the courts on four occasions previously.

8. In 1965 he was convicted twice of simple larceny and was placed on probation for two years. In 1971 he was convicted of two counts of robbery and was bound over for 12 months. In 1972 he was convicted of being in possession of dangerous drugs and smoking dangerous drugs and was again placed on probation: this time for 18 months. It was ordered that his Bond was to stand. The Respondent was at that time addicted to drugs. When he committed the present offence he was in breach of his bond and of the order of probation. When sentencing the Respondent the Magistrate discharged the bond and the order of probation.

9. Section 81B of the Criminal Procedure Ordinance makes it clear that if the Full Court considers that a sentence is manifestly inadequate it may substitute that sentence which the Court thinks ought to have been passed by the Lower Court. And it is clear from Section 81A(6) of the same enactment that "sentence" includes an order made, as here, under Section 36 of the Magistrates Ordinance. Counsel for the Respondent, Miss Leong, urged that all the matters to which I have referred above were before the Magistrate when he passed sentence and suggested that it would be unwise to interfere with the discretion of the Magistrate in the circumstances.

10. We will say at once that the sentence passed by the Magistrate in this case was manifestly inadequate. It is only in the rarest of cases that a custodial sentence is not called for for the offence of robbery. And the present case is not one of them. We consider that a custodial sentence is required. Taking into consideration that the Respondent pleaded guilty and that the watch and umbrella stolen were recovered, the sentence passed by the Magistrate is quashed and the Respondent is sentenced to 18 months imprisonment, to run from the date of the hearing of the Review.

Representation: