Cheng Chiu Shek v. The Queen

CACC000027/1982

Criminal law - sentence - although a 'general deterrent' (or "exemplary") sentence, which disregards entirely the personal circumstances of the defendant, should not normally be passed on a first offender, it may be proper to pass on him an individually deterrent sentence, which gives only slight weight to his personal circumstances, if by reason of the seriousness of the offence the public interest so requires. In passing sentence a judge is not bound to take the view of the evidence most favourable to the defendant but should not draw an adverse inference from primary facts unless it is the only proper inference.

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A.

Date of hearing: 13 April 1982

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. The Appellant seeks leave to appeal against the two sentences imposed in respect of offences of attempting to render a person insensible with intent to commit an indictable offence and of indecent assault on a woman, leave having been refused by the single judge.

2. There are four grounds of appeal submitted to this Court. The first is that the sentences are manifestly excessive in all the circumstances, and counsel has referred us to some cases reported in a journal. These are not reported by a member of the Bar and we cannot accept them as reliable reports. Even if we could, we are not satisfied that the sentences are beyond the tariff. The over-all sentence is one of 7 year' imprisonment. The offences referred to in the newspaper reports are offences of rape and we think it right to say that there has been a tendency in recent years for sentences for offences of that kind to be on the low side and we are not satisfied that the sentences here are manifestly excessive.

3. Secondly it is said that the learned judge erred in principle in passim general deterrent sentences on a first offender. It is accepted that this men was a first offender but we do not accept that this was a general deterrent sentence". Unfortunately this phrase has never been carefully defined. The learned single judge in refusing leave drew a distinction which we think is appropriate: he referred to an exemplary sentence, that is to say a sentence which is intended as an example to the world at large and entirely disregards the personal mitigating factors of the individual defendant. It is a distinction which is not quite so clear in the case of Curran (1973) 57 Crim. App. R, 945, although it was there drawn. The distinction there was between a sentence where the individual mitigating factors are not regarded and those where they are regarded, but the deterrence intended is deterrence of the individual: it is always proper for the Court in passing sentence to have regard to the effects on the public. As I said only two or three days ago, one of the most important factors in assessing a sentence is that the public outrage, and the outrage of the victim and his relatives, shall be assuaged, otherwise there is always a danger of individuals' taking the law into their own hands. The learned judge in the present case did not disregard entirely the mitigating factors: all he said was that the personal considerations of the prisoner ''do not weigh very heavily in this case''.

4. Thirdly it was said that the learned judge erred in failing to take the view of the evidence most favourable to the Defendant. The main defence in this case was one of automatism: it was suggested that the Appellant had without his knowledge taken a hallucinatory drug and that as a result he did not know what he was doing at the time he committed the offences. That defence was rejected by the jury. It was then suggested to the trial judge that, although the Appellant may not have been an automaton, he was nevertheless affected by a drug and therefore was not so responsible as he might otherwise have been. There was really no evidence that the Appellant was under the effect of a drug. The only evidence which has been drawn to our attention was that of a witness who was declared hostile and whose evidence therefore was unreliable but even his evidence does not really substantiate an allegation that this appellant was under the influence of a drug. Our attention was drawn to Chau Chi-ming v. Reg., 1977 H.K.L.R. 466. That case in our view is not authority for the proposition which has been advanced to us. All that case said is, in effect, that where an inference is going to be drawn against a prisoner it must be the only inference which can properly be drawn from the primary facts, and that, where more than one possible inference car be drawn, then the more favourable inference should be drawn. All we are saying here is that there was no sufficient evidence to justify the conclusion which was sought by the defence and that it was open to the judge to say that he did not believe the evidence of the witness who had been declared hostile.

5. The other ground, which really has already been covered, was that the judge erred in principle in passing general deterrent sentences. As I have said, these were not general deterrent sentences in the sense of being exemplary sentences, the mitigating factors being disregarded. We accept that this was one incident but it was a very serious offence: the Appellant choked this girl to the extent that the forensic pathologist found petechial haemorrhage: she fainted and it was then that he committed the indecent assault. It is true that the Appellant has a respectable background and it may well be that he is unlikely to commit a further offence, but this was a very serious offence and, first offender or not, he should have expected a heavy sentence. We see no ground for interferring and the application is dismissed.

6. The learned single judge gave full reasons for dismissing the application and we order a loss of 28 days.

13th April 1982.

Representation:

P. Clayton (K.Y. Wo. & Co.) for Appellant.

R.G. Walters for Crown/Respondent.