The Queen v. Lam Yau Chi

CACC000691/1983

IN THE COURT OF APPEAL

BETWEEN

Coram: Li, Silke, JJ.A. & Garcia, J.

Date: 29th September, 1983

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JUDGMENT

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Li, J.A.:

1. The applicant was convicted on his own plea of robbery on the 16th of March. He was sentenced to 4½ years imprisonment.

2. The facts revealed that in the early hours of the morning on the 16th of March, the victim was escorted by her friend home. She was waylaid by five men, three of whom carried knives. They threatened the couple and robbed them of their properties set out in the charge.

3. At about 6.40 a.m. on the 1st of April, the police on information went to a room 1604 at Tin chi Lau, Shun Tin Estate and arrested the defendant. Under caution, the applicant made a statement.

4. On the 2nd of April, the applicant was identified by the male escort in an identification parade as one of the five men who robbed the victim and himself.

5. At the time of the crime, the applicant was just over 18 years old. The trial judge passed sentence only after he had obtained reports from the probation officer as well as the intake officer of the correctional Services Department. The probation officer gave a detailed report and said that the subject was not suitable for probation. The intake officer considered that the applicant was suitable subject for a period of disciplinary training. In passing sentence, the trial judge took the reports and all the circumstances into consideration. He adopted the guideline that was provided in the case of Mo Kwong-sang ⁽¹⁾ . He considered the youth, the clear record and the plea of guilty on the part of the applicant. However, he felt that 4½ years should be awarded as a penalty in the light of a tariff sentence of about 6 years.

6. We are of opinion that there is nothing wrong in principle. Nor is the sentence manifestly excessive. However, having regard to the age of the applicant, his hitherto clear record and that the reports made to the judge was at least 6 months old before the appeal is heard, we order further reports both from the probation officer and the intake officer of the correctional Services Department. The reports are practically reiterations of the former reports.

7. The probation officer said that the applicant's parents supported a request for an early discharge and that the applicant was weak in motivation for reform. In the intake officer's opinion, the applicant regarded the period of imprisonment as very traumatic and reiterated that he (the applicant) would turn over a new leaf. The intake officer also indicated that the applicant had an inclination to delinquent subculture, still young and immature and that the family was too insensitive to his needs and problems in the past. The intake officer considered that the applicant Mould learn a lesson in due course and would live an honest life in future. He recommended in a stronger terms that a period of disciplinary training would be an advantage to the applicant.

8. As I have said and re-emphasize again that there is nothing wrong in principle in the trial judge's sentence. However, as an act of mercy re are prepared this time to adopt the intake officer's suggestion and hope that the applicant would take this chance to heart. For these reasons, we grant the applicant's application for leave to appeal against sentence, allow the appeal, set aside the sentence of 4½ years imprisonment and order that he be detained in a training centre.

(1)  1981 H.K.L.R. 610   

Representation:

Appellant in person

A. Cheung (Crown) for respondent