The Queen v. Low Kim Hung and Others

IN THE COURT OF APPEAL

1986, No. 618
 (Criminal)

BETWEEN

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1987, No. 106
(Criminal)

BETWEEN

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Coram: Silke, J.A., Power & Penlington, JJ.

Date of Hearing :  8th May 1987

Date of Judgment :  8th May 1987

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JUDGMENT

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Silke, J.A.:

1. The Applicant, Low Kim Hung, was charged jointly with two others in the High Court with robbery. On a second count he alone was charged with assisting offenders contrary "to section 90(1) of the Criminal Procedure Ordinance. He pleaded guilty to that count at the earliest evidence for them at the trial of his two co-accused.

2. At the conclusion of that trial he was sentenced to a period of 3 years’ imprisonment. He filed an application for leave to appeal against that sentence. His two co-accused applied in respect of their convictions. We dealt with their applications on the 3^rd March 1987 and adjourned the Applicant’s application because we were made aware that he had been sentenced to a period of imprisonment in the District Court subsequent to the sentence passed in the High Court. We had it in mind then to alter his High Court sentence to one of detention in a Training Centre but, because of the subsequent sentence of imprisonment, we were not in a position to take that course.  We therefore suggested that there be an application for leave to appeal the District Court sentence out of time, which application has now been made.

3. In relation to the High Court case, he had, and it was accepted, refused to take part in the robbery itself but allowed his premises to be used by persons with whom he was friendly to divide up the goods stolen in the robbery. Also to keep the knives which were used in the course of it.

4. A Probation Report and one from the Commissioner of Correctional Service had been called for. Both, somewhat surprisingly, said that there was no indication of remorse. This clearly influenced the trial judge in coming to the sentence which he passed. We would have thought the conduct of the Applicant in offering to plead guilty, offering his assistance, giving that assistance and by giving evidence would have been indicative of attempt, at the least, to turn over a new leaf.

5. In the District Court case, the trial judge was clearly minded to impose a Training Centre order and, we think, would have done so had the previous High Court sentence of imprisonment not existed.

6. The Applicant was 19 at the time of commission of both offences. We consider, bearing in mind the contents of the Probation Officer's Report and the Training Centre Report, that this is one of those comparatively rare cases where a man who has committed this type of offence would benefit from training centre and, in turn, society itself would benefit if he is given an opportunity, by removing himself from criminal activities and criminal associates, of rehabilitation.

7. We therefore make an order in relation to the High Court case that leave is granted and the appeal allowed. The sentence of 3 years is quashed and there is substituted a Training Centre Order.

8. In respect of the District Court case, leave is also granted and the appeal allowed. The sentence of 2 years on each charge concurrent is quashed and there is substituted a Training Centre Order.

9. The Applicant should be aware that he has been given this opportunity because of the nature of his background and the course he has taken subsequent to the offences. He should take every opportunity to avail himself of the chance and see to it that he does not appear before this or any other Court again.

Wesley Wong, Esq. (D.L.A.) for Applicant.

John MoNamara, Esq. for Crown/Respondent.