The Queen v. Yau Hiu-kwong
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CACC000822/1983 IN THE COURT OF APPEAL
BETWEEN
Coram: McMullin, V.-P., Li & Silke, JJ.A. Date: 21st October, 1983 ___________ JUDGMENT ___________ Li, J.A.: 1. The applicant is convicted on his own plea of the offence of robbery. He was sentenced to 5 years. At the time of the offence he was 19 years old. He was accused together with 2 other young persons, one aged 15 and the other aged 16. 2. The admitted facts are that on the 19th of April this year, the three of them went into a massage establishment pretending to be customers. They were each ushered into a cubicle. Suddenly they came out. The applicant put a knife on the couch for the massage and declared the robbery. 3. There was a struggle with one of the victims. In the course of the struggle he cut the fingers of the victim and cut himself as well. In the course of the robbery the applicant and his confederates threatened the customers as well as the staff. 4. Police were called. They were observed as the applicant and his confederates came out of the lift on the ground floor, chased back upstairs and eventually caught. The applicant was found in possession of stolen properties - a wrist watch, a bracelet and a bundle of wires. The stolen properties were subsequently identified by the victims. 5. In passing sentence, the judge obtained reports both from the probation officer and the intake officer of the correctional Services Department. As regards the lst and the 3rd accused, the other two persons, the judge observed that they were very young and they were 16 and 15 years he took account that they had a clear record and pleaded guilty. The reports of the intake officer regarding these two showed that they were in lack of discipline and that an order for detention centre would be too short. So the trial judge quite rightly sent them to the training centre as an appropriate sentence. 6. When he came to deal with the applicant himself, the 2nd defendant, the judge also had the probation officer's report as well as the intake officer's report before him. The report showed that the applicant, aged 19, came from a decent family in China. Both his parents were post secondary school graduates. He has an elder brother who is currently studying in Peking University. In 1978-79, he came with his father and sister to Hong Kong for the reason that they in transit to Singapore. The father was to take care of the business the grandfather left behind in Singapore. They stayed in Hong Kong for no apparent reason. The applicant was sent to a secondary school. He was not, unfortunately, as academically able or inclined as his elder brother. 7. The applicant had to drop out from school for lack of interest. Since then he had been a fur apprentice worker. He worked in a watch factory and electric fan company. At the same time, he enlisted himself as a temporary actor in one of the film studios. It was in that capacity he mixed with some undesirable elements. The father was busy in earning a livelihood in Hong Kong and could spare little time to supervise him. In fact, very little information could be obtained from the father. 8. The probation officer considers that there is no concrete rehabilitative plan for him. Open supervision is not appropriate and probation service is not recommended. The probation officer is of opinion that the applicant is evasive and blames the younger boy as being the master-mind who led him astray. 9. The intake officer, however, takes a slightly different attitude. He considers that the applicant's character is not of an aggressive type. 10. The applicant admitted that he was led astray by his colleagues. The subject's attitude pertaining reformation was positive. He claimed that he had not committed any previous offence. 11. His father and elder sister knew very little about his conduct outside. They were very astonished upon learning that subject had committed a criminal offence. Anyhow, they still would accept him and wish that he could start a new life again. In view of the above the intake officer is of the opinion that a period of disciplinary training will be beneficial to him. 12. The judge dealt with the applicant in this manner and said :
It appears that the judge accepted the fact that there was no concrete evidence of who was indeed the ring leader. 13. The ground of appeal filed by the applicant is that he is not the ring leader. He was tempted on impulsive basis. In a moment of greed he thought he would succeed in making quick money. He joined the other two to rob this massage establishment. He did so, despite his age. He did not correct the wrong approach and the wrong attitude of the other two younger men. It is for this reason the judge imposed a term of 5 years imprisonment. 14. We feel that there is nothing wrong in principle of this sentence. Nor, in ordinary circumstances, is such sentence manifestly excessive. We do not feel that the disparity of sentence between this applicant and the other two should cause us to interfere. However, we observe that the intake officer recommended u period of disciplinary training. This offence, if not out of character of the applicant, is quite out of character with his family background. He still has a father and a sister in Hong Kong who are prepared to take him back. As an act of mercy, we are prepared to give him a chance. But this is the one and only chance to be given in very special circumstances. It should out be taken as a precedent in other cases of similar nature. 15. For these reasons, we grant leave to appeal against sentence, treat the application as the appeal itself, the appeal is allowed to the extent that the sentence of 5 years imprisonment is set aside. In lieu thereof the applicant is sentenced to a training centre.
Representation: Appellant in person J. O'Neil (Crown) for respondent |