ATTORNEY GENERAL v. LI CHI KO AND OTHERS

BETWEEN:

ATTORNEY GENERAL

and

1. LI CHI-KO

2 LEE CHI-YUEN

3. LAM KAM-YUEN

4. CHUNG SAI-KWONG

Date: 12th August, 1987

_________________

J U D G M E N T

_________________

Yang, Acting C.J. -

1. This is the Attorney General's application for a review of sentences passed on the respondents by Deputy Judge Barnett (as he then was) in a case of robbery.

2. The respondents pleaded guilty before a magistrate and were sent up to the High Court for sentence.

3. The facts of the case are relatively straightforward. At about 1.30 p.rn. on 16th July, 1985, the applicants together with other persons by means of a ruse gained entry into an address known as DD224, Lot 327, Silverstream Path, Silverstrand Bay, Sai Kung, New Territories. The gardener of the premises was pinned onto the ground and robbery was declared. He was also threatened with a melon knife. Upon being told by the gardener that there were but two Filipina maids and two children in the premises, the intruders went in, threatened the Filipina maids, assaulted one of the maids and tied the hands of all three victims.

4. One of the Filipinas, Consolacion Capindo by name, was courageous enough to attack one of the intruders in her attempt to protect a baby she was then taking care of. As a result she was hit on the head with the handle of a knife, thereby sustaining some minor injuries.

5. In the course of the robbery, one of the intruders, CHUNG Sai-kwong, being horrified at the violence used, disarmed one of his colleagues and was himself injured in the shoulder as a result.

6. The judge in assessing the sentences for these applicants, took into consideration their pleas of guilty and also their youth and a number of personal circumstances. He sentenced LEE Chi-ko and LAM Chi-yuen to detention in a training centre and LEE Chi-yuen and CHUNG Sai-kwong to detention in a detention centre.

7. Mr. Cross, on behalf of the Attorney General, argues that the sentences are manifestly inadequate and wrong in principle, citing to us a number of authorities, in particular MO Kwong-sang[1] and WAN Hei-ping[2].

8. It is settled law that, save in exceptional circumstances, a term of imprisonment ought to be imposed in a case of serious robbery as this one was, and youth of itself, is not such an exceptional circumstance, although extreme youth may be. (Attorney General v. Poon Chi Tak[3])

9. Having regard to the facts of this case where a well-planned robbery was committed in domestic premises by a number of armed people who did not hesitate to use threats and violence on the victims, we are of the view that, even though the culprits were teenagers, immediate sentences of imprisonment ought to have been imposed. There are no exceptional circumstances present here except, in the case of LAM Kam-yuen, who was only 15.

10. Having regard to all the circumstances of this case, we allow the application and review the sentences in the following manner.

11. We are of the view that had the applicants been adults and pleaded not guilty, sentences of 8 to 9 years' imprisonment would have been appropriate.

12. Having regard to the pleas of guilty and the ages of the applicants, except for LAM, who was just over 15 at the time of the offence, we are of the view that 5 years would have been appropriate.

13. The applicant, CHUNG, however, deserves special consideration for the role he played in that he disarmed one of his colleagues and sustained injuries himself. For this we would give a discount of 1 year.

14. Except for LAM, then, the sentence that we would have imposed on LI Chi-ko and LEE Chi-yuen would have been 5 years' imprisonment, and on CHUNG Sai-kwong, 4 years' imprisonment.

15. This being a review we would not impose the sentences which would otherwise have been appropriate. We would, following the customary reduction in an application for review, order that the sentence on LI Chi-ko and LEE Chi-yuen be one of 4 years’ imprisonment for each, and 3 years: imprisonment for CHUNG Sai-kwong.

16. In our judgment the extreme youth of LAM Kam-yuen is an exceptional circumstance which ought to be taken into consideration. Whilst the sentence of detention in a training centre might be regarded as somewhat lenient, we are not of the view that this sentence is either wrong in principle or manifestly inadequate. Accordingly, the application as regards LAM is refused and his sentence stands.

I.G. Cross and W.S. Cheung for crown/Applicant

Miss Esther Toh (D.L.A.) for Respondent

[1]  [1981] H.K.L.R. 610

[2]  [1987] Crim. App. 113

[3]  [1986] App. For Review No. 14.