Siu Man-wai v. The Queen

CACC000767/1981

Suspended sentence - subsequent offence with period of suspension - should be activated

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Coram: Roberts, C.J., Li & Silke, JJ. A.

Date of Judgment: 26th November. 1981

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JUDGMENT

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Li, J.A.:

1. The applicant was convicted on his own plea of 4 charges of robbery. He was sentenced to 4 1/2 years imprisonment in respect of each charge on the 24th August, 1981 - the sentences to be concurrent.

2. He applied for leave to appeal against sentence which was refused by a single judge on the 7th of October. He renewed his application to this court on the 13th of October.

3. The facts admitted by the applicant in respect of the 4 charges reveal that on four separate occasions between the 3rd and the 23rd of July this year he accosted single women on staircases near their homes with a knife, relieved them of their properties and ran away. The incidents occurred on the 3rd, the 4th, the 6th and the 23rd of July. These formed the subject matters of the first to the fourth charges. The properties taken are set out in each of the respective charges.

4. The applicant was arrested by the police on information. He made caution statement admitting all the four robberies. In relation to the 4th robbery he said he robbed the victim of a handbag which he threw to a toilet. That was retrieved from that toilet to which the police was led by the applicant. In addition. the applicant was identified by all the 4 lady victims in an Identification Parade on the 26th of July.

5. The applicant is 30 years old. He has 14 previous convictions starting from the year 1965. They show 3 robberies, 2 blackmails, 3 thefts plus other offences including possession of offensive weapon and drug offences.

6. In his reason for sentence, the judge took into consideration of his plea of guilty. The only plea in mitigation before the trial judge was that he was a drug addict. The offences were committed to satisfy his bad habit.

7. Before this court he now says that he applies on compassionate ground that his younger sister went away and disappeared: his father is sick: he has a big family without anybody to support it except his young brother who is the sole bread winner.

8. It has been said that the time to think of the family is the time before one commits a crime. This applicant has been leading a life of crime since 1965. He had been given chances after chances. He had been put on probation, sent to the training centre. sent to prison in short terms. sent to the drug addiction centre and had been given suspended sentences. This applicant had been given every variety of correctional penalties.

9. The trial judge had given consideration to all relevant factors before passing sentence. There is nothing wrong in the length of sentence at all, albeit that it is on the light side. However, one matter that the trial judge had not mentioned was that on the 10th of October last year the applicant was convicted of smoking dangerous drugs and possession of dangerous drugs. For that he was awarded a sentence of 6 months imprisonment to be suspended for a period of 18 months. Within a period of 9 months he committed the present offences. The trial judge did not activate the suspended sentence.

10. In our opinion, the suspended sentence should be activated. Otherwise there is no point for awarding suspended sentence. We also feel that there is absolutely no merit in this application. A single judge had refused the application on the 7th of October. It is proper that the applicant should lose time as from the 7th October up to the date of the refusal of his leave.

11. For these reasons we order that the 6 months sentence to be activated. It should be served consecutively with the sentence of 4 1/2 years. In the event the application for leave to appeal against sentence is refused. The applicant has also to lose time as from the 7th of October up to the date.

Representation:

Appellant in person.

Mr. Tisdall, Crown Counsel, for Crown/Respondent.