The Queen v. Wong Kwok Fai

CACC001325/1983

BETWEEN

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Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 25 February 1984

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JUDGMENT

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Silke, J. A.:

1. The applicant was convicted of a robbery which took place on the 21st June 1983. Two other persons, who have not been apprehended, were involved.

2. A man had been asleep in a wooden hut in Kam Shek Lane Village, Lam Tin and two men came in at about 9:15 in the morning. Those two men were armed with knives. The applicant was not one of them but arrived a little later. The person who was robbed recognized the applicant because he was known in the area.

3. The applicant raised in the Court below a defence that he had been forced by the two men with the knives to participate in that which was taking place. Though he did not give evidence of that fact it was put in the course of the cross-examination, as I understand it.

4. He was identified by the person who was robbed and, further, a fingerprint of his was found on a pack of cigarettes.

5. Before passing sentence upon him, because of his age - he was aged 19 and had a clear record - the trial judge called for reports from both the Probation Officer and the Commissioner of Correctional Services.

6. The first report which was received - I am referring to that of the Commissioner of Correctional Services - was to the effect that he was not suitable for detention in a Detention Center because he was suffering from apparently an enlarged heart but he was suitable for detention in a Training Center.

7. In passing sentence, the judge made a slight error in that he thought, as he recorded, that the Commissioner regarded the applicant to be more suitable for Detention Center rather than Training Center. He went on that, in his opinion, in view of the seriousness of the offence and the circumstances in which it was committed a substantial prison sentence was merited.

8. We thought, in the light of the various circumstances and the nature of the reports that were before the trial judge, that we should procure a further report from the Intake Officer in the Training Center. For that reason we adjourned this matter on the last occasion.

9. We have now received that report. It would appear, from the medical report attached to the latest report, that the enlarged heart was not hindering the applicant in the normal course of his daily life. The report itself is a good report and favourable one. It was the opinion of the person who made it that the applicant showed remorseful feelings for his misbehaviour and wanted to try and start life anew. That he is young and immature but his attitude towards rehabilitation was positive. It was thought that a period of disciplinary training would be beneficial to him.

10. There are occasions when this Court can show a measure of clemency. We certainly do not go so far as to say that five years' imprisonment for this type of robbery was wrong. People are entitled to live their lives in their own homes without being disturbed by persons approaching them with knives in order to rob. But we are in this case prepared to take a chance with the applicant in the light of that which we know of his personal circumstances and in the light of the favourable nature of the reports which we have before us.

11. We appreciate that this is an unusual course. We do not intend in any way to condone the nature of the offence, but we are prepared to vary the order of imprisonment and to make an order that the applicant be detained in the Training Center where he will receive and, from the nature of the report, will appreciate rehabilitation. He will also receive supervision after his release. It is for the applicant to make the best of this chance he has been given. It is most unlikely if he appears in this Court again after his release that any such clemency will be again shown to him. If he benefits from his experience in the Training Center then so will society in general.

12. We will therefore grant the application for leave to appeal, allow the appeal, quash the sentence of imprisonment and substitute therefore an order of Training Center detention.

Representation:

Applicant in person.

K.J. Oderberg, Esq. for Crown/Respondent.