Cheng Muk-keung v. The Queen
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CACC000939/1971 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 939 OF 1971
----------------- Coram: Leonard J. in Court. Date of Judgment: 17 January 1972 ----------------- JUDGMENT ----------------- 1. This is an appeal against sentence. In the court below the appellant a youth of 16 pleaded guilty to robbery and was ordered to be detained in the training centre for the statutory period. The robbery took place on the 10th floor of Ocean View Apartments in Chatham Road, Kowloon. The appellant acted as lookout man when the other accused persons, who were also aged between 18 and 16, robbed the inmates, two Chinese females of a wristwatch and cash. The robbery was carried out at knife point and the accused was after arrest found to be in possession of a pen knife. Of the other accused one was sent to the training centre and the others were placed on probation. Three points were taken by counsel for the appellant. The first was that there was a disparity of sentence between this appellant and the other boys who were older. The second was that no allowance was made by the magistrate for his plea of guilty and the third that he was not afforded a chance to say anything in mitigation. As to the first ground of appeal I do not consider sentences can be said to be desperate because the magistrate on consideration of the probation report decides to send one accused person to training centre and to place another on probation. A perusal of the probation officer's report in the case of this appellant convinces me that it would have been an unwise step to place him on probation. He has been on probation on two previous occasions and had also been detained in the Castle Peak Boys Home. 2. I do not think it is necessary for me to comment on the ground that the magistrate failed to take into account the fact that the appellant had pleaded guilty. 3. As to his not having been afforded a chance to say anything in mitigation, it is correct that the record does not show that he was afforded a chance and is incomplete if he was. I am, however, assured by Crown Counsel that the learned magistrate did afford the accused an opportunity of speaking in mitigation which the accused did not exercise. I am quite satisfied that the magistrate who is of considerable experience could not have overlooked this duty. 4. There is then no merit in any of the grounds of appeal advanced. Furthermore by no stretch of imagination could it be said that a committal to the training centre was manifestly excessive or wrong in principle for an offence of this nature committed by a person of the mantality of the appellant. On the face of the record then there was no reason why the appeal should not be dismissed. 5. As it appeared from the probation report however, the appellant had a pathetic family background. His father was a drug addict who deserted his mother before he was born. The mother married again but he did not get on with his step father and generally was unhappy in the family house which he had left some months before the commission of this offence. His counsel indicated to me however that his brother-in-law a Mr. Luk who got on well with the boy was prepared to take him into his home, to get him a job and generally to see that he kept out of trouble. I have the advantage of hearing this brother-in-law both in court and in chambers. He is a most respectable and responsible young man of 23, married and with one child. A Government servant, he is in receipt of an income of $1,300 a month. He has a large flat in which he has room for the appellant. I was most impressed with his attitude to the appellant and to the court and am quite satisfied that he is a young man of very considerable character. In view of the leniency extended by the learned magistrate to 4 of the appellant's co-accused I have little doubt but that had he had the advantage of hearing Mr. Luk's offer he would have made the order which I propose to make. In all the circumstances of the case while recognizing that no fault could be found with the magistrate's decision in this case I order that the appellant be convicted but be discharged conditionally on entering into a recognizance with one surety (Mr. Luk Cham Choi) in the sum of $500 to be of good behaviour and to appear for sentence when called on at any time during the period of 2 years on condition that he shall during the period reside with Mr. Luk. I made it a further condition of his discharge that he should report to me with Mr. Luk in chambers on the 26th February 1972 and on such other dates as may be appointed by me for that purpose.
Representation: R. Tang (Rowdget W. Young & Co.) for appellant. E. So, C.C. for respondent. Oral judgment reduced into writing. |