Fong Lung Fai v. The Queen

CACC000206/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.206 OF 1968

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Coram: Hogan, C.J. & Pickering, J.

Date of Judgment: 12 June 1968

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DECISION

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1. This is a difficult and in many ways a repellent and sad case, repellent because of the injuries that have been done to a number of small girls, and sad because of the consequences which these injuries may ultimately have for them, and must have for the appellant.

2. The first ten charges, to which he has pleaded guilty, involved carnal knowledge of small girls under thirteen, and in many instances the actions of the accused were accompanied by violence. There are several features about the case that are puzzling because the accused, until these occurrences, seems to have led an honest, decent, respectable and creditable life - coming from humble origins and a difficult family background in China - having apparently been transferred or sold by his natural parents at an early age to foster parents, of whom the father was most of the time out of the country and unable to give him much care and attention.

3. Since he came from China some years ago, the accused has earned an honest living, and the readiness with which he admitted his guilt and his whole attitude towards these unfortunate occurrences might lead one to think that there was a possibility of finding in his mental condition some indication of diminished responsibility or something of that kind. The psychiatric report, which was made available to the judge in the court below and which has been made available to us, does not disclose anything of the sort. As a result, counsel, who has argued the case with his customary vigour and has brought to it a most commendable measure of concentration industry and hard work, has found himself unable to do more than to suggest that the occurrences with which we are here concerned arose from a distorted sense of values on the part of the accused.

4. Clearly, the judge had a difficult task in assessing the appropriate sentence for the first ten charges before him. Counsel for the appellant has criticised his response to that problem on the grounds that the accused should have been treated as a first offender, and, instead of this, had been given the maximum penalty on the first charge, that is life imprisonment, a sentence which counsel says is entirely wrong in principle. In making this criticism, counsel has accepted that, at the time the judge imposed this sentence, he was of course aware that the accused had pleaded guilty to 12 other offences, 9 of them of a similar character; but, counsel argued, in determining whether a man is or is not a first offender the essential criterion is whether he has previously been exposed to a charge, conviction and punishment for an offence so that he has experienced the restraint, the deterrent weight, of a conviction and has, nevertheless, gone on to repeat his previous error. Counsel maintained that repetitive acts, which had not yet been subjected to the law's restraint, did not take him out of the category of first offender. Counsel also argued that, in determining a sentence of this kind, a life sentence was inappropriate, and that the judge in the court below should have fixed a determinate period.

5. We are not satisfied that the accused in this case should have been treated as a first offender. When a man appears before a court and pleads guilty to ten charges of the serious nature revealed by the first ten charges in this case, it would be, we think, quite unreal to talk of him as a first offender. Had the judge felt that the appropriate punishment for the offences with which he had to deal was a determinate sentence it would of course have been possible for him to have fixed a sentence for the first offence which was appropriate to that offence alone, then to have taken the second offence, possibly imposing a higher sentence in regard to that, making the sentence either concurrent or consecutive as he thought appropriate, and then proceed to deal with the other offences in a similar fashion but bearing in mind that the cumulative effect of the consecutive sentences should not be out of all reason and excessive. He has chosen to deal with it in a different way and to impose the same sentence in respect of each offence, namely a sentence of life imprisonment.

6. The circumstances in which a sentence of that kind can be justified have been the subject of consideration by the courts in England, and our attention has been directed to a number of authorities of which we think we need only mention at this stage the case of R. v. Gunnell⁽¹⁾. During the course of argument we drew counsels' attention to the recent decision in the case of R. v. Hodgson⁽²⁾: the headnote reads:

"A sentence of life imprisonment is justified when

Having considered that case we felt some anxiety as to whether the attitude and approach taken by the court in that case indicated some difference or departure from the approach which the courts had adopted in the earlier cases of R. v. O'Connor⁽³⁾ and R. v. Knight⁽⁴⁾ where the Court of Criminal Appeal - or in the second case, the Court of Appeal (Criminal Division), took exception to the decision of the judge in the court below in imposing a life sentence and replaced it by a determinate sentence.

7. In O'Connor⁽³⁾ the accused had been indicted for murder and his plea of guilty to manslaughter had been accepted. He was 21 years of age and of previous good character. He had picked up a woman who was a spastic, and after visiting a number of public houses apparently expected to have intercourse with her. When she refused he lost his temper and struck her with his fist; she fell, striking her head and fracturing her skull, and died. The trial judge imposed imprisonment for life, as he himself said, out of mercy, so that the prisoner might be allowed out when the authorities thought fit. He said:

"You may develop, as your counsel has hoped, into a normal hard-working man, but it is for other authorities, not me, to determine when you will be allowed to mix with your fellow human beings."

The appellate court said that that sentence was quite wrong in principle.

8. In the later case of Knight⁽⁴⁾, the headnote in the criminal appeal report says:

"Sentence of life imprisonment for armed assault, burglary and wounding varied to seven years' imprisonment, there being no evidence of mental disease or abnormality on the part of the appellant.".

The appellant had been charged and pleaded guilty to armed assault, to burglary and to wounding. The Court of Appeal, having adverted to the earlier decision in O'Connor⁽³⁾, said that in the earlier case the court had said that the imposition of life imprisonment out of mercy was wrong in principle, and went on to say:

"...this Court adopts and applies to the present case the words there employed by the Lord Chief Justice: 'There was here no question of mental disease or of anything requiring mental treatment. The case merited punishment for a definite number of years and not a sentence which would put the duty of deciding when to release the prisoner on other authorities.'".

9. We asked counsel to consider these cases and address us on them. In doing so, counsel for the Crown also referred us to the decision in R. v. Morris⁽⁵⁾. He said these cases could be reconciled on the following basis that where you have an offence sufficiently serious in itself to justify the lengthy sentence of life imprisonment, then it is appropriate to impose that sentence in two classes of circumstances, one, where it is necessary to protect society from the individual in question, and the other when there are indications that the accused will benefit from treatment which he can receive or may receive either in prison or in hospital under secure conditions, and that it is necessary or desirable to review from time to time the effects of that treatment so that the appropriate moment for the accused release may be determined in the light of any improvement which may have set in. Counsel argued that it was better and more appropriate in such circumstances to impose the indeterminate sentence of life imprisonment, but, he said, where neither of the circumstances just mentioned applied, the decisions in Knight⁽⁴⁾ and O'Connor⁽³⁾ would indicate that it was not appropriate for a judge merely to transfer on to the shoulders of another authority the responsibility of determining when a person convicted of an offence, a serious offence, should be released from prison; this was a responsibility which the judge should shoulder himself, and that neither out of mercy or otherwise was it appropriate merely to remove it on to other shoulders.

10. There seems much to commend these arguments. In saying so we do not overlook the fact that the provisions for the periodic review of life sentences and long determinate sentences may not greatly differ in form. It would seem reasonable to assume that the former would be more readily reviewable than the latter. Presumably in the former the question would be "when may the prisoner properly be released?" whereas, in the latter, the issue would presumably be whether there were factors justifying release before the prescribed sentence, subject to the usual periods of remission, had been served.

11. Turning back to the facts of the present case - and assuming we apply the principles to be extracted from the decisions to which we have just referred - Mr. Ming Huang, for the appellant, contends that the conditions which have been recognised in these cases as necessary to justify a term of life imprisonment are not satisfied in the present instance. If we understand him correctly, he does not challenge the authority of the most recent case, that of R. v. Hodgson⁽²⁾, but he says three conditions are there prescribed, and while it may be possible to argue that the first and third have been satisfied in the present case - although he does not necessarily concede that they are - the second requirement, he says, quite clearly is not satisfied.

12. In the judgment of the Court of Appeal that second condition is expressed as follows:

"When it appears from the nature of the offences or from the defendant's history that he is unstable and likely to commit such offences in the future; ..".

Counsel argues that in the present case the defendant's history does not reveal any indication of an unstable character, quite the contrary, he says it shows this man to have been steady, hardworking and reliable, apart from these particular offences. It seems to us, however, that counsel's argument overlook the first words in the condition:

"When it appears from the nature of the offences ...".

The repetition of these serious offences over a comparatively short period of time against such a large number of small girls, does, in our view, indicate at the least instability in the character of the accused, and it also indicates that the public needs to be protected from the accused at this stage. Consequently we are satisfied that the second of the requirements advanced in Hodgson⁽²⁾ is satisfied in the present case.

13. Counsel for the appellant went on to argue that the third condition, namely, that if the offences are committed again the consequences to others may be specially injurious, is also not satisfied in the present instance, but we could not take that view of the offences - a number of which involved violence against these small girls. We think they fall into the category of offences, the repetition of which would be "specially injurious" - as the words were used in the case of Hodgson⁽²⁾.

14. The offences were certainly serious and in the circumstances we think that the decision by the judge in the court below to impose sentences of life imprisonment, which will of course be subject to regular review, was a realistic approach which is not contrary to any principle, and not an approach with which we would be justified in interfering. No doubt the appellant will be kept under close observation during the period of his incarceration, and it may be that something can be done to help him recover an outlook on life which will at some later stage enable him to resume a useful and acceptable part in the life of this community.

15. The application for leave to appeal against sentence is refused.

Representation:

Ming Huang (Hon and Co.) assigned for Appellant.

Duckett C.C. for Respondent.

(1) (1966) 50 C.A.R. @ 242.

(2) (1968) 52 C.A.R. @ 113.

(3) (1960) C.L.R. @ 275.

(4) (1967) 51 C.A.R. @ 466.

(5) (1961) 2 Q.B. @ 237.