Tsoi Chi-wah v. The Queen

CACC001092/1974

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 1092 OF 1974

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Coram: Mr. Commissioner Yang in Court.

Date of Judgment: 2 January 1975

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JUDGMENT

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1. The appellant was convicted of four charges of robbery and sentenced as follows:

making a total of 30 months' imprisonment.

2. The learned trial magistrate found the following facts:

" On the 9th November 1974 four youths came to Taipo where they hired bicycles for the day. In the afternoon of that day the youths were taking a rest in the playground at Tai Wing Lane in Taipo when they were approached by the appellant and his co-defendant. The appellant and the other defendant addressed a few questions to the youths and then made them produce their money. They threatened the boys with a beating should they fail to produce all they had and warned them that they would be searched afterwards. At this, the youths handed over the amounts of cash specified in the four charges. Curiously the appellant and his co-defendant were gentlemanly enough to return $1.10 to the 4 youths so that they could buy their train tickets for Kowloon."

3. The appellant is 23 years of age and a seaman by occupation. He has one previous conviction for possession of dangerous drugs in 1972 and one for robbery in September 1973, for which offence he was sentenced to 18 months' imprisonment. It will therefore be noted that on the date of the present offence, he had been released from prison for about two months only. The appellant's co-defendant who had a clear record was sentenced to concurrent term of 15 months' imprisonment only, i.e., half of what was given to the appellant.

4. In giving his reasons for the sentences on the appellant, the learned magistrate said that the appellant is "clearly of violent disposition having been convicted of Robbery in September of 1973". He further observed that "a substantial sentence of imprisonment was called for as it would appear that his last sentence has clearly not acted as a sufficient deterrent". I agree with this second observation. But I am of the view that one previous conviction of robbery is not sufficient evidence of the appellant's violent disposition. It would therefore not be appropriate to take this particular aspect of the appellant's character into consideration when passing sentence. It will be noted that both culprits were of the same age and they appeared to have played a similar role in the robberies. In my judgment, inspite of the different past records of the appellant and his co-defendant, and inspite of the appellant's recent release from prison, the disparity between the sentences imposed on these two men is far greater than is justified by the circumstances.

5. For the reasons given above, a concurrent sentence of 21 months' imprisonment on each charge would appear to be appropriate. I therefore allow the appeal and vary the sentences as follows:

On Charge A - 21 months;

On Charge B - 21 months;

On Charge C - 21 months;

On Charge D - 21 months; sentences to run concurrently.

Representation:

Appellant in person.

Alderdice, C.C. for Respondent.