Ho Ping Kwong v. The Queen

Case No.CACC 552/1972

Court

Court of Appeal

Date14 Aug 1972

Judge—

Case Document

100%Judiciary

CACC000552/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 552 OF 1972

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BETWEEN
	HO PING KWONG	Appellant
	and
	THE QUEEN	Respondent

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Coram: Leonard, J.

Date of Judgment: 14 August 1972

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JUDGMENT

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1. This is an appeal against a sentence of fifteen months' imprisonment for robbery and three months consecutive for unlawful possession imposed on the appellant in the North Kowloon Magistracy on the 21st July, 1972.

2. The robbery was a very serious one which occurred at 11.00 p.m. on the night of the 6th July, 1972. The victims were a young couple who were out for a walk when they were suddenly approached by the appellant and another Chinese male each armed with knives. They were robbed at knife point. After the robbery, the appellant and his accomplice walked away and they were courageously followed by the two victims. A member of the public also followed them. The victims saw a police officer and informed him of what had occurred. Thereupon the appellant was arrested although his accomplice managed to escape. At the time of his arrest, the appellant was in possession of the proceeds of another equally serious robbery committed the previous day. The appellant was aged 17 years and had what amounted to a clear record.

3. In the course of his Statement of Findings, the learned magistrate said

	"In the ordinary way I would have called for Probation and Training Centre Reports. I did not do so because I have considered for some time that imprisonment is the only appropriate penalty for robbery where knives are used in its commission. This attitude has been frequently stated from my Bench. Here two persons were involved each armed - a woman was threatened - the robbery occurring in the street late at night. In this case the defendant admitted that he had also carried out a robbery the previous day and had escaped with substantial booty. No mitigating features were suggested.
	While the defendant is young, has a virtually clear record and pleaded guilty he must in my view expect a term of imprisonment. At the age of 17 he is no inexperienced youth. Indeed it is youths of this type and inclination that cause so much of the violent crime and deaths in Hong Kong ......
	It seemed better for the defendant to receive a severe shock now than to feel he could escape with the relatively nominal penalty of detention in a Training Centre, institutions which are steadily becoming less able to cope with people of this type. Probation I judged to be quite inappropriate in the circumstances."

4. I appreciate that Probation Officers are extremely busy people and there is no point in calling for Probation Officer's Reports or Training Centre Reports if one has decided that imprisonment is the only appropriate remedy. In such circumstances one wishes to pass sentence as quickly as possible. To conclude, however, that imprisonment is the only appropriate remedy for robbery by a seventeen years old who has a clear record appeared to me to be a somewhat radical departure from the accepted practice in the Colony. In the case of Lavin 51 C.A.R. 378, the Court of Appeal dealt with questions arising from a major departure from accepted sentencing policy, and I think I might, without doing violence to its meaning, paraphrase with reference to this particular case a paragraph in the judgment in that case :

"I have every sympathy with the approach of the learned magistrate, but it seems to me that any major departure in policy of the kind suggested by him is one which at any rate ought to be done in consultation with his brethren, because this is a matter which affects every part of the Colony and not merely North Kowloon. It may be that the time will come when for every offence of this character the courts will be bound to sentence a man to imprisonment, but before that takes place, I am quite satisfied that there should be greater consultation to ensure that there is some degree of uniformity throughout the Colony, although there will be variations according to local conditions."

As things are at present, I do not think there is that degree of uniformity between the magistrates themselves and in this Court that would enable one to state unequivocally that a youth under the age of 20 must be punished with imprisonment even for robbery at knife point. I agree that there is sufficient uniformity to indicate that in such cases a sentence of a custodial nature is almost invariably essential. The legislature has for a long time past given us two alternatives; firstly the Training Centre and secondly a prison sentence. Recently, it has supplied a third namely the Detention Centre. With respect to the learned magistrate, I cannot agree that detention in a Training Centre is a "relatively nominal penalty". Detainees there can be deprived of liberty for as long a period as three years. They are further subjected to a follow-up procedure when released. This means that defendants sent to the Training Centre who do not wish to change their ways are subject to limitations which they necessarily find irksome in the extreme. Again I have no evidence that the Training Centre institutions are unable to cope with people of the type of this appellant.

5. The new Detention Centres are set up in order to give to youths of this type that sharp experience of punishment which should assist them to see that robbery of this nature cannot be committed with impunity.

6. With respect to the learned magistrate, I note that he does not appear to have considered this third alternative. To my mind when one is dealing with a youth of seventeen who has a clear record and who may be at the cross-roads where he has a choice between leading to the life of a criminal or that of a respectable adult, it is essential to take time to determine that whichever of the three forms of custodial sentence one adopts is (in sofar as any can be) the correct one. I have throughout my experience found the information supplied by Probation Officers to be of the utmost value in determining the correct sentence to be imposed. The Training Centre Reports are as a rule more non-committal which I personally feel is a pity, but I do not consider that either Probation Reports, Training Centre Reports or Detention Centre Reports can hinder one in one's determination of the appropriate sentence.

7. In the circumstances, I decided to call for such reports in this case.

	(P.F.X. Leonard)
	Puisne Judge

Representation: