Attorney General v. Cheng Yau Leung

CAAR000001/1991

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Coram: Fuad, V.-P., Penlington & Macdougall, JJ.A.

Date of Hearing: 4 June 1991

Date of Judgment: 4 June 1991

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J U D G M E N T

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Fuad, V.-P. (giving the judgment of the court):

1. This is an application by the Attorney General pursuant to s.81A of the Criminal Procedure Ordinance for the review of a sentence of 12 months' imprisonment imposed on 13th December 1990 in the District Court by Mr. G.P. Muttrie, sitting as a Deputy Judge. The respondent had pleaded guilty to the offence of assault with intent to rob, contrary to s.10(2) of the Theft Ordinance.

2. The facts were that at about 7:45 p.m. on 8th June 1990, a lady who had finished her day's work in a garment factory in an industrial building, got into the lift on the 8th floor. When the lift had gone down two floors, the respondent stepped into the lift with another man and after the lift had started again, the lady was grabbed from behind by the neck and punched on her head several times. When the lift stopped on the 4th floor, the victim managed to get out of the lift. Her head was bleeding from the blows she had received.

3. A security guard who was sitting in the corridor on the same floor, realising that something had gone wrong, closed the iron grille in front of the lift and the other iron grilles so that the respondent was trapped. A report was made to the police. When they arrived, the victim pointed out the respondent as being one of the people who had been in the lift with her when she was struck on the head. The respondent admitted that he and his companion had intended to rob her.

4. The respondent is aged about 27 and had no previous record. In his reasons for sentence, the learned deputy judge said that although the charge was one of assault with intent to rob and not one of robbery, it was difficult to see that his culpability was less than it would have been if the attempt had been successful. However, he then said that had it been successful, in the light of the authorities, the starting point for the sentence would have been 5 years' imprisonment. He went on to say that there was nothing to contradict the respondent's assertions that he had been "pulled into committing" the crime by the other man and that he had not actually taken part in the assault on the victim. But the judge added that the fact was that the lady had been punched on the head and injured and the respondent had taken part in the assault. He said "Even a minor player plays a part and the minor nature of his part can only go so far in mitigation."

5. The judge then said that he had taken into consideration the fact that the respondent had a good character and that he was married with a young child. He felt that this was an offence out of character. He observed that it was the sort of case which might well have been charged in the magistrate's court had it not originally been one of a number of charges against the respondent which had been dropped after he had pleaded guilty to the offence with which we are concerned. He said that while a custodial sentence was necessary, in the circumstances the proper sentence should be relatively short.

6. On behalf of the Attorney General it was pointed out that the offence was a violent one, the lady was injured, and more than one person was involved. She had been all alone in the lift when attacked. We were referred to a number of cases including Mo Kwong Sang [1981] HKLR 610, Wong Sai Cheong AR 1 of 1985, Wong Wai Por Cr.App. 464/85, Luang Po Chuen and others Cr.App. 107 of 1987 and AG v. Shek Sui Tai [1989] 1 HKLR 178. It seems plain to us that the sentence imposed by the deputy judge was completely out of line with the guidance offered by the Court of Appeal for cases of this kind. We find it difficult to understand how the deputy judge felt able to impose so lenient a sentence for this serious offence. There can be no question that the duty of this court is to enhance the sentence.

7. There had been considerable delay in making the application, partly due to the time it took for the Attorney General to obtain all the necessary papers and partly due to the fact that the respondent had originally applied for leave to appeal against sentence, an application which he later withdrew. He is due for release on 13th June, that is to say in about 9 days time.

8. In The Attorney General v. Wong Kwok Wai, AR 16 of 1990, a decision given on 31st May 1991, this court presided over by Silke, V.P., sitting with Power, J.A. and Macdougall, J.A. discussed the principles upon which "discounts" are granted on applications for review. We need not refer to the whole of the judgment. At p.9 of the transcript the learned Vice-President said:

"In exercising the discretion which we consider this court to have we think that there should be borne in mind that, where a person is serving a prison sentence, this court should, generally, impose the sentence it thinks the trial judge should have imposed and without a discount. A discount can, however, be properly considered in cases where the respondent is very close to the end of his sentence or where the sentence imposed by this court is greatly in excess of the original sentence."

9. In our judgment, the proper sentence in this case would have been 4 years imprisonment and because the respondent would have been released on 13th June, and for that reason alone, we think that he should be given a "discount" of 6 months. Therefore, we allow the application, set aside the original sentence and impose one of 3 1/2 years' imprisonment.

Representation:

Mr. D.G. Saw and Mr. Robert Lee (Crown Prosecutor) for Applicant/Crown

Mr. H.Y. Wong (D.L.A.) for the Respondent