Kan Kwok Ming and Another v. The Queen

CACC000834/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 834 OF 1974

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Coram: Huggins & McMullin, JJ.

Date of Judgment: 22nd January 1975.

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JUDGMENT

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Huggins, J.:

1. These two Appellants were charged before the District Court on a total of four charges. In the first charge both were accused of robbery, in the second and third charges the first Appellant alone was charged with resisting a police officer in the execution of his duty and with possession of an offensive weapon in a public place and on the fourth charge the second Appellant only was charged with robbery.

2. The offence alleged in the first charge was on any view a serious matter. A man left his house to go to work, leaving his wife and three children at home. The wife went out to empty the rubbish and as she left her home she was attacked by three men, one of them holding a knife. She was unable to shut the door quickly enough: she was pushed inside, threatened with the knife and then tied up and gagged. While the premises were being ransacked the robbers found a safe and thereupon threatened the woman that they would injure her children if she did not tell them the combination. Having taken what they could find, they left. The alarm was raised and a search began for the criminals. The first Appellant was seen in the street by a police officer and identified by the husband as a person holding some of his property. The police officer approached and grabbed hold of the first Appellant. The first Appellant resisted and drew a triangular file with which he attempted to strike the police officer. The officer drew his revolver and shot the first Appellant. That shot struck the base of the first Appellant's spine and he will be a paraplegic for life.

3. The second Appellant was subsequently arrested and he admitted the second robbery. It is not necessary to give full details and it is sufficient to say that it was of a similar nature to the one in the first charge.

4. The second Appellant was, at the time of his sentence, already serving a sentence of detention in a Training Centre in respect of a subsequent offence. The learned judge with great care looked into all the circumstances and came to the conclusion that a Training Centre order was the proper sentence. We see no reason whatsoever to differ from that view.

5. The case of the first Appellant presents greater difficulty. The learned judge was of opinion that the offence of robbery merited a sentence of three years' imprisonment by itself, but by reason of the injury which the Appellant had received he thought the sentence should be reduced to two years' imprisonment. He then passed concurrent sentences of one year's imprisonment on each of the other two charges against this Appellant. The Director of Public Prosecutions has rightly drawn to our attention the fact that the sentence on the second charge was in excess of the maximum allowed by law and was no doubt passed by oversight. That sentence would in any event have to be reduced to not more than six months, but it is urged that imprisonment is not appropriate in this case. The learned judge himself has had misgivings as to whether two years' imprisonment sufficiently took into account the injury which the first Appellant has received. It is right to say that the injury was due to the first Appellant's own conduct. However, he was at that time only just over 16 years old. We incline to the view that the proper sentence in this case would have been - if it had been lawful - one of two years' imprisonment suspended. Unfortunately the Legislature does not allow suspended sentences in cases of robbery. The Appellant has been in custody since his arrest on 25th March last year, and in all the circumstances we think the proper course is that we should allow his appeal and substitute such terms of imprisonment as will allow him to be released today. In view of s.67A of the Criminal Procedure Ordinance that can be achieved although we are obliged to impose the minimum mandatory sentence on the third charge.

6. The application on the second Appellant is dismissed.

22nd January 1975.

Representation: