Wan Ping-choi and Others v. The Queen
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CACC000639/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 639 OF 1973 -----------------
----------------- Coram: Trainor J. in Court. Date of Judgment: 31st August, 1973. ----------------- JUDGMENT ----------------- 1. The appellants appeal against the sentence imposed upon them when they were convicted in the Magistrate's Court on the 25th April 1973 of robbery. 2. The first appellant was convicted on five charges and was sentenced to 18 months' imprisonment on each; the first two sentences to run consecutively, the other three to run concurrently with them. 3. The second and third appellants were charged on the first two charges only and on conviction were sentenced to 18 months' imprisonment on each count the sentences to run consecutively. 4. Summarised, the grounds of appeal were that:
5. Before dealing with what was urged in mitigation on behalf of the appellants by their counsel, Mrs. Le Pichon, it might be helpful briefly to review the background to this appeal. 6. The five robberies committed by the first appellant were committed within a period of one week; those committed by the other two were committed on successive days. 7. The first charge was the most serious. The victim in it received head injuries which required five stitches and he was detained in hospital for some days. In carrying out the robbery the first appellant used a pole, the second a bottle and the third his fists. 8. The victim of the second charge was a boy of 13 years who was, according to the learned magistrate, subjected to considerable violence with fists before being relieved of his watch and jacket. 9. A note of the evidence given in the court below is not before me, but as the first appellant was convicted of robbery on the other three charges I must assume that some degree of violence or intimidation was used even though I do not know the extent. When arrested on the ...(illegible)th December the first accused made a statement admitting the robbery for which he was arrested and went on to tell of others. As a result of this some of the stolen property was recovered. He was asked about certain injuries on his face and body and said he received them in a fight shortly before his arrest but on the 23rd December he complained that he had been assaulted by the police and asked to be medically examined alleging that he had been kicked and punched. Bruising was found on his body. 10. When the appellants were first charged the first two pleaded guilty but at a later date changed their plea to not guilty. 11. At the trial the first appellant retracted his statement and maintained it was obtained as a result of man-handling by the police. He alleged there was a conspiracy between the police and the civilian witnesses to have him convicted. 12. The second appellant also retracted his statement and, according to the decision of the learned magistrate, made a half-hearted effort to repudiate his admission to the charges. 13. Neither gave evidence. 14. The third appellant also repudiated his statement and relied on an alibi which was not accepted. 15. Mrs. Le Pichon said that the appellants were born on the 9th July 1954, 28th December 1956 and the 13th November 1956 respectively. She said that although the first appellant had been convicted on all five charges he had previously held a clear record. She referred to the pre-sentence report of the after-care officer who said that on admission to the Victoria Training Centre the appellant's attitude was fair but that on the second interview he showed remarkable recovery. She drew attention to his unfortunate family background as given by the Probation Officer who also said the appellant need proper guidance and supervision. As to the second appellant Mrs. Le Pichon said that although he had two previous convictions the first occurred when he was only 13 years of age. She asked is three years' imprisonment the proper penalty for this boy and submitted it was not. 16. As to the third appellant Mrs. Le Pichon pointed out that although he had a previous conviction he was only 12 years of age at the date of it. 17. With regard to all three she pointed out that they were all considered suitable for detention in a Training Centre and that more could be done for them there than in prison and that any benefit they received would ultimately redound to the public benefit. Mrs. Le Pichon submitted that in all the circumstances the penalties were manifestly excessive and wrong in principle and cited Re Applications for Review of Sentences(1). Mrs. Le Pichon further submitted that it was contrary to usual practice to impose cumulative penalties and referred to Cross's English Sentencing System and cited R. v. Brown(2). 18. I think that what any judge has to take into consideration when fulfilling one of his most difficult tasks, arriving at a correct penalty after conviction, is admirably reflected in the headnote to the Case For Review cited by Mrs. Le Pichon:
19. In arriving at his decision as to the penalties he ultimately imposed the learned magistrate had at his disposal the usual reports on the appellants. It is true that the report on the first and third said they were suitable for Training Centre and the second for Detention Centre but nowhere was it recommended that such was the appropriate penalty as Mrs. Le Pichon appeared to argue. In the reports the first appellant was described as "defensive", "evasive", "no sense of remorse", "tried to blame others". The second appellant was considered unsuitable for detention in a Training Centre but suitable for Detention Centre. However no place was available in the Detention Centre. His background report showed him to be "unruly and agressive"; "no remorse at all". He told the intake officer that he had been "framed up" by the police. 20. The third appellant was previously on probation but, according to the Probation Officer, "his response did not prove to be satisfactory". In fact he had to be brought back to court for breach of the conditions imposed in the Probation Order. This appellant also was described as "evasive" and "showed no sense of remorse". He too maintained he was "framed". 21. This indicates the views taken by the Probation Officers or after-care officers of the three appellants. It might be somewhat in the appellant's favour that their general behaviour on remand was considered satisfactory but as they were awaiting sentence it is unlikely they would be other than well-behaved. 22. The reports must have made a very considerable impact on the mind of the learned magistrate; they certainly did on me. He had to consider them in the light of the impression these appellants made on him during the trial especially when they were giving evidence. He was in the best position to decide whether or not Training Centre or Detention Centre was the proper treatment for them. He considered that the first appellant by the sheer number of the robberies in rapid succession had forfeited any claim to leniency and, indeed, they deserved scant consideration having regard to the violence and gang attack methods used and the rapid repeat behaviour. 23. There is no doubt whatever that robbery with violence is widespread in Hong Kong. In my opinion it must be driven home to all and sundry who may be inclined to indulge in this form of crime that they can expect little lenience from the courts. Even where repentance is expressed, and there was little of it by the appellants, the culprit must in the public interest be punished and punished severely. Robbery in Hong Kong, in my opinion must receive an exemplary punishment. But even then exemplary punishment is a relative matter. It must be assessed and imposed having regard to the circumstances of the case and the offender and his future and the general public interest. I thoroughly agree that the offences of which the accused were convicted would warrant in certain circumstances a much more severe penalty than that imposed, for example if the accused were older, and the learned magistrate took that factor into account when he arrived at the penalties he imposed. He did not, nor do I, consider that a Training Centre was appropriate. 24. The reports on the appellants suggest, indeed say, that detention of some sort is necessary and what they say of the appellants' general behaviour convince me that the learned magistrate was correct when he decided that prison is the correct place of detention. In saying that I have considered the possible dangers of these boys being further and permanently contaminated by association with the hardened criminals. I have been assured by Crown counsel that there is segregation, but nevertheless the behaviour of the appellants was such as to leave me apprehensive of the effect they might have on other boys in a Training or Detention Centre were they sent to such a centre. 25. The remaining point raised by Mrs. Le Pichon to be considered is that of the cumulative penalties and the case of R. v. Brown(2) which she cited. 26. I do not consider that the appellants can get any great assistance from the decision in that case nor from R. v. Evans cited it. In each of those cases the trial judge had imposed short cumulative sentences on conviction on a series of charges which were, in fact, duplicate charges. In the instant case the charges were separate and distinct and the learned magistrate was entitled to treat them as such in his discretion and within his jurisdiction. He expressed his view on the proper overall punishment that the appellants deserved for their offences and having considered his jurisdiction he imposed a penalty of 18 months on each of the first two charges to be served consecutively. So far as the first appellant is concerned he imposed 18 months on three other charges of robbery but he made these concurrent. 27. I am not at all convinced that those penalties were unsatisfactory or manifestly excessive; I do not consider them to be excessive. As I said before violence is prevalent in Hong Kong and the public interest demands a severe and condign punishment. 28. I would have dismissed this appeal completely but it did occur to me that a gesture towards the appellants might produce some reaction of remorse for their offences and appreciation of the gesture that might remove any possible feeling of bitterness, and perhaps encourage them on a path of reformation. For that reason I allow the appeal to the extent that the sentences will run from the date of arrest, that is, in the case of the first appellant the 20th December 1972, and in the case of the other two the 16th January 1973.
Representation: (1) (1972) H.K.L.R. 370 at 376/377. (2) 52 C.A.R. 176. |