The Attorney Genral v. Yim Yee Kwong
Read the full judgment text of CAAR 6/1981 on BabelCite. This Court of Appeal judgment.
1. This is an application by the Attorney General for a review of sentences passed by Mr. Commissioner Barnes on the respondent YIM Yee-kwong.
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CAAR000006/1981 Case No.: Application for Review No. 6 of 1981 Date of hearing: 3rd June, 1981. Date when judgment was delivered: 3rd June, 1981.
Case cited by Counsel in agrument: Attorney General v. LAM Kam-tai 1972 HKLR 324 Attorney General v. LEE Chi-man A.R. No. 5 of 1980 Attorney General v. CHAN Kin-chung A.R. No. 12 of 1980
----------------- Coram: Roberts, C.J., Li, J.A. and Silke, J. Date of Judgment: 3rd June, 1981 Date of hearing: 3rd June, 1981. Date when judgment was delivered: 3rd June, 1981. ----------------- DECISION -----------------
Roberts, C.J.: Facts 1. This is an application by the Attorney General for a review of sentences passed by Mr. Commissioner Barnes on the respondent YIM Yee-kwong. 2. Yim was convicted on two charges, the first being the manslaughter of YIP Shing-ping on the 21st July, 1980, and the second charge being robbery of LAM Shing-fung on the same day. 3. It is not necessary to recite the facts in any detail. It is sufficient, for the purposes of this review, to note that in the early hours of the morning of the 21st July, the respondent held up Mr. YIP Shing-ping, the victim in the first charge, at knife-point in a toilet at Block 2 in the Wong Tai Sin Estate in Kowloon. 4. In a statement made by him to the police on the same day, the respondent said that when he held up Mr. Yip, the latter grabbed at him with his hand and that he (the respondent) unknowingly stabbed him once. The medical evidence was that the victim died of a stab wound in the chest. 5. A few minutes later the respondent robbed the victim named in the second charge (Mr. Lam) of $1,000 in cash, in another toilet located at the ground floor of Block 15 in the same Estate. When Mr. Lam began to protest, on being asked to hand over other articles of property, the respondent lost his nerve and ran away. Mr. Lam was not injured. 6. Mr. Lam raised a hue and cry and the respondent was arrested soon afterwards. He admitted both offences to the police in statements which he made later on the same day. 7. The Commissioner sentenced the respondent to eight years' imprisonment on the first charge and six years' imprisonment on the second charge, the sentences to run concurrently. Were sentences wrong in principle? 8. Section 818 of the Criminal Procedure Ordinance (Cap. 221) authorizes the Court of Appeal to enhance a sentence if it thinks that it was wrong in principle or manifestly excessive or manifestly inadequate. 9. The first submission by the Crown was that the sentences imposed by the Commissioner were wrong in principle in that the two charges arose out of separate incidents, even though they were closely linked in time and that consecutive sentences should have been imposed. The Commissioner does not give any reasons for imposing concurrent sentences. 10. The usual principle is that where a series of offences occurs, during the course of what could fairly be described as the same expedition, the sentence for each similar offence which is committed in the course of that expedition is concurrent with the others, though the correct concurrent sentence is likely to be higher because more than one offence was committed. 11. We consider that these two offences can properly be described as occurring during the course of the same expedition by the respondent. There was an interval of only a few minutes between them, as there would be between a series of burglaries or robberies taking place during the same night and in the same building or area. In the latter circumstances, the court would usually pass concurrent, rather than consecutive, sentences. 12. We, therefore, do not think that the Commissioner was in error in deciding that this was a case in which he could pass consecutive sentences. Manifestly inadequate 13. Were these sentences, both individually and in totality, manifestly inadequate? In our approach to this we adopt the tests prescribed in A.G. v. LAM Kam-tai(1). The general rule set out therein is that this Court should not interfere unless left with a sense of shock or outrage at the inadequacy of the penalties which have been imposed. 14. A sentence of six years, which was passed on the second charge is a proper one for a single offence of robbery in which the accused uses a knife to threaten in a public place and where there are no other aggravating circumstances. 15. The Commissioner does not say how he has arrived at a sentence of 8 years on the first charge. We can only guess that, in doing so, he would have included the same sentence of six years which he had imposed on the second charge. This would mean that he has added to the basic six years a further two years because of the manner in which the knife was used by the respondent. 16. In assessing the proper sentence to be imposed for the first offence, the following factors should be taken into account. A sentence of six years would be reasonable for a robbery in which a knife was used to threaten. However, it would be proper for a court to increase this where the accused is a person who has a bad criminal record, as this respondent had. 17. From the age of 15 he has been continually in one kind of trouble or another. He has been sent to a Boys' Home; probation has been tried; he was sent to a Training Centre; on three occasions he was sent to Drug Addiction Treatment Centre; on three occasions he has been sentenced to imprisonment, on the last occasion for robbery, in 1977, so that he cannot have been released from prison until towards the end of 1979, only a few months before these offences. 18. Weight should always be given by a court, in determining sentence, to any other offences which the accused has asked to be taken into consideration. This will normally mean that the sentence which the court would otherwise have passed should be increased. In this case, it seems unlikely that the Commissioner made any addition to his sentence by reason of the nine other robberies, seven involving the threatening of a victim with a knife, which he was asked to take into consideration. 19. The poor record of the accused, and the 9 additional robberies would have justified the usual sentence of 6 years being increased to about 9 years for the robberies, not taking into account the injuries inflicted on the victim in the first charge. 20. In Mau Cheung Lung v. The Queen(2), a consecutive sentence was imposed on one of a group of robbers, who wounded one of the victims during a robbery. In Attorney General v. CHAN Kin-chung(3) two men forced their way into an hotel bedroom, and tied up two tourists and robbed them. One of the robbers was sentenced to a two year consecutive sentence for stabbing one of the victims in the chest. 21. Thus there is ample authority to support the proposition that a consecutive sentence for the wounding should be imposed on a robber who wounds his victim. In this case the basic robbery and the act of stabbing were subsumed in the conviction for manslaughter and we think it proper, in assessing sentence for that offence, to include the normal sentence for robbery plus an addition for the use of the knife. The jury having taken the merciful view that the respondent did not intend to kill or to cause serious harm, but that the use of the knife was so dangerous as to be likely to result in harm, we think that an additional sentence of about three years would have been proper. 22. We have no hesitation in deciding that we feel the sense of shock required and that the sentence passed on the respondent was manifestly inadequate. 23. We believe, taking into account the two charges, the respondent's record, and the other offences which were taken into consideration, that a proper sentence would have been 12 years. 24. In accordance with the general principle that there should be a reduction on review, we order that the sentences of 8 years and 6 years imprisonment be quashed and sentences of 10 years substituted on each of the two charges, the sentences to run concurrently. Procedure 25. I think it might be helpful to the Attorney General, if we were to say that we hope that in future applications for review, the single judge, to whom the application for leave originally goes, and this court could be furnished with a general statement as to why the sentence is wrong in principle, if the application is based on that ground. 26. It would also be useful if, as a matter of standard practice, the documents submitted by the Crown included the respondent's record, a list of any offences which were taken into account by the trial judge, and a copy of the charge sheet itself. Representation: G.W. Alderdice, Senior Assistant Crown Prosecutor for Applicant Patrick Yu, Miss Susan Kwan (D.L.A.) for Respondent (1) (1972) H.K.L.R. 324 (2) (1979) Court of Appeal on 9th Jan. (3) (1980) App. for Review No. 12 |