Ng Pun-kau v. The Queen
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CACC000849/1980
----------------- Coram: McMullin, V.-P., Li, J.A. & Silke, J. Date of Judgment: 30th December, 1980 ----------------- JUDGMENT ----------------- McMullin, V.-P.: 1. The appellant was convicted after trial upon a charge of robbery. He received a sentence of four years' imprisonment. He does not now appeal against conviction but he made application for leave to appeal against sentence which was granted by the single judge. 2. The circumstances were that the appellant together with two other men entered the Kun Kee Company in Nam Cheong Street on the 24th of September. They posed as customers. Present in the shop at the time was the proprietor, Mr. LEE Yau-hing, and his daughter-in-law and a sales representative. Shortly after entering the three men produced knives. One of them closed and locked the doors of the shop. Thereafter all the occupants were gagged and blindfolded. The shop was ransacked and a quantity of money in excess of $7,000 was taken together with some small property. The appellant was arrested in December. 3. There was then a considerable delay before trial. It appears that he was on bail for about one year but during that year he had applied to have the original hearing date in May vacated for the purpose of obtaining legal aid. A fresh date was fixed and the case was heard upon two days in September 1980. Sentence was imposed on the 9th of October. 4. The appellant has a clear record and this fact was referred by the trial judge in passing sentence. He said the 1st defendant was 19 years of age. That was a mistake as is apparent on the information before the court at present. It is now clear that the defendant was 17 years and 9 months at the date of the commission of the offence. On the view which he took of the circumstances of the offence we do not think that the judge would have imposed a different sentence had he known the appellant's true age. 5. The judge very properly called for the relevant reports. The probation officer's report was negative in the sense that it did not give a very laudatory account of the appellant's history of character and did not recommend probation. It concluded, however, with the suggestion that a period of strict disciplinary training would be advisable. Detention and training centres suitability reports were also considered by the judge. The Commissioner of Prisons took the view that the appellant would be suitable for either form of treatment but that a detention centre order would be preferable from his point of view. The judge said:
6. Miss Leong who has argued the appeal with considerable force asks us to say that in all the circumstances the sentence was both excessive in extent and wrong in principle. A tariff rate for a first offender of this description, she suggests, is simply not appropriate. She also asks us to note the fact that the judge having the reports before him has not, ostensibly, attended to the possibility of training centre treatment at all and simply dismisses as inappropriate treatment by way of a detention centre order. However, as Mr. Marshall has said, the judge clearly had both reports in mind and it may be that in not specifically referring to training centre that is due to a simple lapse of attention when recording his reasons and that his intention was to say that he considered neither form of treatment appropriate in view of the circumstances of the offence. 7. Counsel put her case very high when she suggested that in failing to follow any of the recommendations of "the experts" the judge had reduced this consultative procedure to a mockery. Such reports are frequently of the greatest assistance in determining sentence but they are of a wholly advisory nature and those who prepare them are naturally concerned with the rehabilitative aspect of sentence and the character of the defendant rather than the wider issues of public policy which, in addition, concern the judge. 8. This case has given us some concern. We have had valuable assistance from Mr. Marshall who directs our attention to the decision of this court in Review Application No. 9 of 1980. That was a case involving two defendants: one aged 20 and the other aged 18. They were tried together on a number of counts the 20 year old being tried upon two counts of robbery and the 18 year old, was sent to a training centre. The robberies there involved were similar to the robbery in the present case. They involved invasion of domestic premises, the tying up of occupants, threatening with knives and stealing a quantity of property. We find it difficult to make a sensible differentiation between the circumstances of that case and the present case. 9. The Court of Appeal considered the sentences which had been passed and while rejecting the idea that there is in respect of such offences a band of sentence below which the court should never go went on to say that they disagreed with the conclusion of the judge for:
Sentences of imprisonment were substituted for the orders made by the District Judge the 1st defendant receiving four years' imprisonment and the 2nd defendant five years. Each of those defendants like the present appellant had clear records. 10. It is true that the judge in the present case was mistaken about the age of this appellant and that the younger of the defendants in the review case who was of comparable age (that is 18 years) with the present appellant had been guilty of four offences of a similar kind. The elder of the defendants in that case, the 20 year old, was guilty of two offences. So it may be said that there was there something in the nature of a system even in the case of the elder defendant, the two offences having been committed upon one date and involving adjoining premises in one building. Since that was a review and not an appeal the normal "discount" factor would apply so that sentences in the region of six and five years respectively would likely have been considered the appropriate sentences for imposition at first instance. 11. Here we are confronted with a single offence but in other respects the circumstances of the present offence and those which the court was considering in the review case are for practical purposes identical. 12. Mr. Marshall has referred us to Criminal Appeal No. 656 of 1980 in which this court, referring to previous decisions, affirmed the view that where domestic premises are invaded, persons are tied up and knives are used sentences of six years would normally not be interfered with. 13. The present case is not, of course, a case involving domestic premises but it is the invasion of premises devoted to what appears to be a family business conducted on an upper floor of the building and the invaders were careful to secure the premises for the purposes of their robbery shortly after invading them. There is in this an element of systematic planning. 14. In all the circumstances and notwithstanding the eloquent plea made on behalf of this appellant we are satisfied that the sentence imposed was a proper one and the appeal must be dismissed. Representation: Miss J. Leong instructed by Director of Legal Aid for the appellant. Marshall for the Crown/respondent. |