Attorney General v. Yuen Yum Shun

CAAR000002/1980

Coram: McMullin, Ag. C.J., Li, J.A. & O'Connor, J.

Date of Judgment: 21 May 1980

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DECISION

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Li, J.A.:

1. This is an application for a review of sentence by the Attorney General. The only ground is that it is wrong in principle for the magistrate to order that a term of imprisonment for an additional offence committed in prison by the respondent be concurrent with the sentence with the respondent is currently serving.

Background

2. The respondent, at the time of the additional offence, was serving concurrent sentences of 8 years' imprisonment for manslaughter and 6 years for robbery. The additional offence was that of assault occasioning actual bodily harm. Both the respondent and the victim were fellow prisoners. For some peculiar reason they were allowed to play 'pai kau', a form of Chinese gambling, in prison without being observed. They played for packets of cigarettes. There was a dispute between the respondent and the victim. The following morning the respondent was seen by a prison warder attacking the victim. The victim suffered a laceration wound of 2 cms. long over his right chin, linear abrasions of 2½ cms. long over his left cheek, superficial linear abrasions 7 cms. long over the posterior aspect of his scalp and superficial laceration of 3 cms. long over the vertex of the scalp. The respondent was also examined and found to have minor abrasions over the left lower lip. The respondent was charged with the charge of assault occasioning actual bodily harm, convicted and was sentenced to 1 year's imprisonment. In passing sentence the learned magistrate found that at the material time the victim first attacked the respondent. It was not an unprovoked attack by the respondent. He said:-

The Law

3. Counsel for the Attorney General reminds us the case of Application No. 10 of 1975 in which a prisoner who escaped from prison was sentenced to 1 month's imprisonment for that offence. The learned magistrate ordered the 1 month's imprisonment to be served concurrently with the sentence he was to serve in prison after his being recaptured. The then Chief Justice said:-

"In our view it is wrong in principle to sentence a person for escaping from legal custody to a concurrent sentence of imprisonment, when the facts are as they are in this case. In his reasons for sentence the magistrate refers to Section 109A of the Criminal Procedure Ordinance. We do not think that that section is material so far as this case is concerned. We think that there is no other method of dealing with a case of this nature other than by an immediate custodial sentence which must be consecutive to any sentence which the person is already serving."

4. Learned counsel for the respondent contends that that case was decided on its peculiar facts. In the present case the learned magistrate has found that the respondent was grossly provoked. What was found was that the respondent just overstepped the boundary of self-defence. The respondent is concurrently serving an 8 years sentence for the crime of manslaughter committed sometime ago. Counsel also invites our attention to the case of an Application for Review in 1972 H.K.L.R. at p.398 in which the then learned Chief Justice said:-

"The forty-two cases to which I have referred, excluding the 1928 case of R. v. Rose, cover a period of some fourteen years. In none of these cases, and there are others of a like nature, did the appellate court refrain from interfering with the sentence on the ground that the sentence, although severe, was either "manifestly excessive" or "wrong in principle". On the contrary, in each case it interfered with the sentence because it thought it right and proper to do so. In many instances it has reduced a sentence as "an act of mercy" where there were factors present and where the court, having regard to those factors, considered it appropriate that it should do so. In other instances, taking a "calculated risk" it has reduced a sentence or imposed an entirely different type of sentence e.g. probation or a suspended sentence, where it has thought it proper so to do."

5. Counsel for the respondent further contends that had the respondent in the present case committed the offence not in prison but out of prison he would probably have been given a lighter sentence in the circumstances. We accept that, having regard to the circumstances, a lighter sentence than 1 year's imprisonment might have and could have been imposed by the learned magistrate. However, we find that the learned magistrate was wrong in principle to order a concurrent sentence. It is a separate and additional offence. Although the respondent is serving a lengthy sentence it does not merit the sentence being ordered to be served concurrently. The sentence should be consecutive. The learned magistrate seemed to have been influenced by the fact that the appellant would lose his entitlement to remission of sentence for good conduct. That is quite wrong as it is shown in the case of Hui Choi v. The Queen reported in 1963 H.K.L.R. at 963. I shall not cite the contents of the case. Suffice it to say that Mr. Justice Huggins as he then was ruled that:-

"The question of remission is not to be taken into account when sentence is imposed."

Conclusion

6. However, we feel that the learned magistrate, having found the facts of the case as he did, had a right to impose a lighter sentence rather than 1 year's imprisonment. We allow this application, set aside the sentence of 1 year's imprisonment to be served concurrently but substitute therefor a sentence of 6 months' imprisonment to be served consecutively with the sentence that the respondent is serving.

Representation:

J.M. Duffy, Ag. Deputy Crown Prosecutor (Legal Department) for appellant.

R. Mayne, (Director of Legal Aid) for respondent