Attorney General v. Chan Chi Lai and Another

CAAR000003/1976

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

APPLICATION FOR REVIEW NO. 3 OF 1976

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Coram: Huggins, McMullin & Pickering, JJ.

Date of Judgment: 17th February 1976.

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JUDGMENT

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Huggins, J.:

1. This is an application by the Attorney General for a review of sentences imposed on the Respondents in a trial upon indictment in the Supreme Court. Both Respondents were charged with robbery and the first Respondent was further charged with rape.

2. This was a very serious case indeed. The first Respondent went to a flat and pretended that he wished to rent a room. Having looked round the premises he went away saying that he would return with his brother. Later he did return - with the second Respondent. They both produced knives and threatened the principal tenant. She was tied up and then induced to communicate with a sub-tenant, who was in her own room, so that the robbers could attack her also. Both women were tied. The sub-tenant had something placed over her head and both her hands and her feet were tied. The premises were ransacked. Then the first Respondent went into the sub-tenant's room and, having removed the tie from the woman's legs, he raped her.

3. This Court must do what it can to protect people in the enjoyment of their homes and from physical indignities of the type which took place here.

4. The learned judge passed sentences of five years' imprisonment and four years' imprisonment on the first Respondent for the rape and robbery respectively, but he ordered those sentences to be served concurrently and concurrently with a sentence of 2 ½ years' imprisonment previously imposed for a robbery. The second Respondent was sentenced to four years' imprisonment for the present robbery but that was ordered to run concurrently with a sentence of 3 ½ years for a previous robbery. It may be mentioned that the previous convictions of these two Respondents were in respect of a joint offence that they had committed.

5. This case has given us some anxiety and we have particularly in mind the reason which led the learned judge to pass the sentences which he did on the first Respondent, namely that he felt that a sentence of five years was about as much as should be passed on somebody who was just eighteen years of age. We bear very much in mind the desirability of avoiding sentences of imprisonment, and particularly long sentences of imprisonment, on young persons. Nevertheless the public must be protected and circumstances may arise where heavy sentences are inevitable. We think this is such a case.

6. In our view the sentence of four years' imprisonment passed on the second Respondent for this robbery was a proper sentence but we think it was wrong that it should be made concurrent with the existing sentence. These were separate and distinct offences and it was desirable that the Respondent should receive separate and distinct sentences. Had the judge passed separate sentences he would presumably have passed a less sentence in the present case, but in our view any less sentence would not have been adequate for the seriousness of the offence.

7. As to the first Respondent the position is more difficult. As with the second Respondent we think that separate and consecutive sentences should have been passed in respect of the present case and the previous case. We incline to think that separate and consecutive sentences should also have been passed in respect of each of the offences in the present indictment, and had sentences of four years' imprisonment for the rape and two years' imprisonment for the robbery been imposed we would not have interfered. However, we think, subject to what I shall say in a moment, that the proper course here is not to interfere with the sentences passed save to order that they shall run consecutively to the previous sentence.

8. As to the first Respondent counsel for the Attorney General has indicated that whatever we do today may be academic because the first Respondent has since been convicted of another offence for which he has been sentenced, according to counsel, to fourteen years' imprisonment and, according to the first Respondent, to 14 ½ years' imprisonment. In reaching the conclusion that we have so far reached we have not had regard to that subsequent conviction. However, we think we cannot entirely rule this out of our minds and we ought now to hear further about this subsequent conviction and the sentence passed thereon

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9. We have now been told that the sentences which have subsequently been imposed - in respect of a very similar case - did amount to 14 ½ years' imprisonment in toto but that they were to be concurrent with the sentences in the present case and those in the previous case. That being so the later conviction does not affect our decision here.

10. The applications are granted and the sentences are altered only to this extent, that they are to be consecutive to the sentences passed in the previous case.

17th February 1976.

Representation: