The Queen v. Chan Chi-fai and Others

CACC000643/1983

[Sentence: Multiple Robberies: Youth of Applicants]

IN THE COURT OF APPEAL

BETWEEN

Coram: McMullin, V.-P., Li & Silke, J.J.A.

Date: 4th November 1983

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J U D G M E N T

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Silke, J.A.:

1. The five applicants seek leave to appeal against the sentences passed upon them. There were at trial - and there were two trials - six defendants. The 4th defendant at trial is not an applicant. The two trials concerned robberies.

2. The 1st defendant and the 1st applicant, Chan Chi Fai, was convicted of four robberies. The 2nd defendant and 2nd applicant, Tang Chung Ming, was convicted of five robberies. The 3rd defendant and 3rd applicant,Yu Yiu Sam, was convicted of five robberies. The 5th defendant and 5th applicant, kwan Hon Lun, was convicted of two robberies and the 6th defendant and 4th applicant, Yuen Ching Chi, was convicted of four robberies.

3. Of the two indictments, the indictment in the case of 303 concerned the more serious robberies. This at trial came second. On that indictment there were two counts. One of those counts concerned the imprisonment of persons for a period of twelve hours and involved all six defendants. They had entered domestic premises with knives, tied up the persons in the premises and forced one of them to sign a bank withdrawal slip at knife point. In the second count - it concerned the home and clinic of a dentist - two persons were injured.

4. In the indictment 302 the robberies took place in hairdressing saloons with a number of persons involved and knives were carried.

5. Mr. Aiken, who appears for all the applicants in this Court and who appeared for them at trial, makes three main points. The first is that the trial judge did not take into consideration sufficiently the youth of the defendants. Apart from D4 who is 22, and who is not before us, the others were either a little short of or a little over 18 at the time of the commission of the offences. He further suggests that the trial judge adopted too high an overall basis of sentence. I would say here that when the trial judge adopted an "overall" basis, he was approaching the matter of sentence as a totality covering both of the indictments.

6. Mr. Aiken's last point is the apparent disparity between the sentences passed on each of the individuals and those passed on D4 of which disparity he says it is difficult for the applicants to understand.

7. The trial judge, in passing sentence in respect of the 1st and 6th defendants on four robberies, thought that twelve years overall would be the proper sentence. He took into consideration their pleas of guilty.  He had in mind their age and this in fact applies to all the applicants. But he was clearly of the view that the circumstances of the robbery generally militated against any discount for age though age was a factor for him to consider.  He gave a discount and imposed sentences totalling ten years.

8. In respect of the 2nd and 3rd applicants, both of whom were convicted of five robberies, he thought a period of fourteen years overall would be correct. He gave a discount in relation to the pleas of guilty on one of the indictments and imposed sentences totalling eleven years.

9. In respect of the 5th defendant, he thought the overall sentence of eight years was correct and gave no discount.

10. I would interpolate here that we accept that the sentence passed on the 22 year old D4 is somewhat out of line with the sentences passed on the other applicants. He had pleaded guilty in the course of the trial to the 302 robberies and had pleaded guilty at the outset to one 303 robbery - a total of four robberies.  The Judge started at the overall sentence of eleven years, reducing it to nine years because of these pleas.

11. But, that having been said, the fact that he was treated somewhat more lightly than would appear to be Justified is not of itself a reason for altering the sentences passed upon the others.

12. Mr. Aiken, in a helpful submission, has referred us to previously decided cases relating to sentence. He has also made reference to the fact that the trial judge refused to obtain either detention centre or probation reports. When this matter first came before us we thought it proper that we should have the assistance of a background report on each of the applicants. And these very full, detailed and useful reports are now before us. This was not intended as any criticism of the trial judge. We thought that we would be in a better position to evaluate the sentences passed if we knew something more about the applicants.

13. We note, in particular, the report concerning the 5th applicant, Kwan Hon Lun. His father is ill. The father depends to a great extent upon the assistance of his son with whom he clearly has a close relationship and this we bear in mind.

14. We have given careful consideration, because there is some point in it, to Mr. Aiken's submissions on the youth of the defendants. We think the disparity in sentence as between the applicants which had been pointed out to us, leaving aside D4, is more apparent than real.

15. This type of offence is unfortunately a very common one. The youth of applicants appearing in this Court, and of defendants at trial,  is of course of very grave concern. But we feel where there is a multiplicity of offences of this nature that the public interest must be served over and above the individual interests of the applicants despite their youth. These offences, in particular those in the indictment 303, were serious and must have terrorized the persons who were the victims. All these offences were committed over a period of about four weeks.

16. We do not think that the trial judge to have adopted the wrong "overall" sentence nor do we think that he was wrong in his general approach to the sentences he passed.

17. As I have said, we have given anxious consideration to the fact that they are young. But we do not think that these sentences generally are such that we should interfere with them. We have given even greater consideration to the ad misericordiam aspect of the submission in respect of the 5th defendant. We do not think the alternative of a training centre or detention centre order would be appropriate in a case of this nature.

18. In the event, the applications are refused.

Representation:

N. Aiken, Esq. assigned by Director of Legal Aid for all applicants.

M.A. McMahon, Esq. for Crown/Respondent.