Lau Hoi-man Alias Lau Hon-man v. The Queen
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CACC000128/1972 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 128 OF 1972 -----------------
----------------- Coram: Leonard J. in Court. Date of Judgment: 17th April, 1972. ----------------- JUDGMENT ----------------- 1. This is an appeal against sentence. The appellant was charged in the Court below with robbery. While all robberies are of their nature serious, this robbery was no more so than the ordinary run of the mill case. The appellant and others, unarmed, assaulted the victim in the street, threatened him and took $90 from his shirt pocket. The victim raised an alarm, and the appellant and one other were arrested. When the appellant came before the learned Magistrate in the Court below, the Magistrate requested for a Probation Officer's report. 2. It was only when he received the Probation Officer's report that the Magistrate discovered that the appellant had formerly been before the Courts on 2 occasions: in July of 1971 he had pleaded guilty to the offence of possession of an offensive weapon in a public place for which he was, on 16th of July 1971, placed on probation. He was not a responsive probationer. In October 1971 he was charged with the offences of robbery and wounding. This robbery was of a much more serious nature than that which came before the Magistrate who sentenced the appellant. It was a robbery with violence in the course of which a police officer had been seriously injured in the hand and in which the appellant had used a weapon. To my mind robberies with knives or other weapons merit considerably more severe punishment than do robberies where mere fists or threats are used. Unfortunately the learned Magistrate who heard those charges of robbery and wounding in the first instance, in misplaced leniency, decided to place the appellant on probation for a further period. Therefore, the learned Magistrate, from whose sentence the present appeal lies, was faced with a youth of 17 years of age who had 2 previous convictions one for a very serious robbery and who was on probation in respect of each. Although the Probation Officer in his report to that Magistrate had suggested that strict disciplinary training would offer a better chance for the appellant's future reformation than would continued probation, the learned Magistrate did not then see fit to call for a training centre report but decided to impose sentences totalling 13 months in respect of the two cases in which the appellant had originally been placed on probation and a further 12 months imprisonment on the fresh charge then before him, making in all a total of 25 months imprisonment. I have no doubt that this sentence was manifestly excessive having regard to the age of the appellant and the fact that a custodial sentence has never before been imposed. On the other hand, if the learned Magistrate who first heard the more serious case of robbery had seen fit to impose a sentence of imprisonment for it, I am in doubt as to whether his sentence might properly have been questioned. Unfortunately that Magistrate did not then see fit to impose a sentence of detention in the training centre which in my opinion would have been the proper course. 3. The sentences from which the appellant now appeals were imposed on the 5th of January 1972. He has been imprisoned awaiting appeal since that date, i.e. for 3 1/3 months. Because of this I consider that the time for sending him to the training centre has passed and although I am satisfied that the sentence appealed from was manifestly excessive I must nevertheless impose sentences of imprisonment. In all the circumstances of the case, and taking the position as it is today, I consider that a sentence of 6 months imprisonment on the charge of robbery in case No. NK70276 is appropriate. I do not now interfere with the sentences imposed in cases Nos. KT21568 and WTS5691/71 AB which are unexceptionable having regard to the dilemma in which the Magistrate imposing them found himself because of the misplaced leniency of the Magistrate who ordered probation for what was a really serious robbery in the first instance. The net result is that sentences shall be of 19 months imprisonment running from the date of conviction, namely the 5th of January 1972.
17th April, 1972. Representation: Appellant in person. Moshinsky for Respondent. Oral judgment reduced into writing. |