The Queen v. Li Ngai-sum

CACC000078/1983

IN THE COURT OF APPEAL

BETWEEN

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

Date: 22nd April 1983

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JUDGMENT

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Silke, J.A.:

1. The applicant, aged twenty years and six months, was found guilty after trial of the offence of attempted robbery.

2. The facts are short and simple. He with two other persons accosted a 19-year-old girl student outside her home. The girl was forced into her home. She screamed, not unnaturally. They then pulled her hair and apparently she was punched. But because she screamed they ran away. Nothing was stolen.

3. The applicant has a clear record. The trial judge had called for reports prior to sentence. The reports were not unfavourable.

4. In passing sentence, he said this :

"In my view a prison sentence was necessary and appropriate. The normal tariff indicated a sentence of some seven years. Considering his clear record and his youth and the fact that the robbery was fortunately not completed I reduced that period to 5½ years."

5. We would point out that this was not an armed robbery. The "tariff" case of MO Kwong Sang⁽¹⁾ relates to armed robberies and the "tariff" referred to is based on that.

6. When this matter first came before us, and after we were addressed by Mr. Hemmings, we adjourned for a further report from the Commissioner of Correctional Services - specifically to find out whether the Commissioner would still think the applicant to be suitable for either a Training or for Detention Centre order. The report we have received is, again, one which was not unfavourable to the applicant.

7. He has expressed his remorse. We are told that he is more suitable for detention in a Detention Centre rather than in Training Centre. There is a place available for him.

8. We think that this is a case in which we can exercise clemency. As Mr. Pritchard very fairly said the Crown felt the sentence not to be an appropriate one in this case.

9. We grant the application for leave to appeal, treat the hearing as the hearing of the appeal, quash the sentence of 5½ years, and, in the hope that the applicant has learned his lesson and will not again appear before this Court, direct that a Detention Centre order be made.

(1)    (1981) H.K.L.R. 610

Representation:

J. Hemmings, Esq. assigned by D.L.A. for the applicant.

R. Pritchard, Esq. for Crown/Respondent.