The Queen v. Tamang Nima

CAAR000007/1983

Criminal law - review of sentence - stare decisis - Court of Appeal normally bound by previous decision of that court in criminal cases - test on review is whether sentence is wrong in principle or manifestly inadequate or excessive - test of "shock or outrage" disapproved - there being a presumption in favorem libertatis, court will be more easily persuaded that a sentence is manifestly excessive than that it is manifestly inadequate - Attorney General has right to be heard in support of application and in reply, but court will ensure that counsel, as a minister of justice, does not go beyond bounds of propriety in presenting a matter of sentence.

BETWEEN

1983 No. 7

(Application for Review)

BETWEEN

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

Date: 17th November 1983.

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. These two applications by the Attorney General for review of sentences were heard together before a court of five judges because it was suggested that there were conflicting decisions of the Court of Appeal and that the principles upon which the court should proceed required restating.

2. In the event we think that the area of conflict is far narrower than has been suggested by the Attorney General and we do not find it necessary to discourse at length on the doctrine of stare decisis. If there were a single, clear decision of this court on any of the matters here in issue we would consider ourselves bound to follow it and we do not agree that the Attorney General of St. Christopher, Nevis & Anguilla v Reynolds 1980 A. C. 637 gives general approval to this court's overruling its previous decisions in criminal cases. There may well be a limited power to overrule a previous decision which the court thinks was clearly wrong, if the result would be to prevent the conviction of an innocent man, but the opinion of the Board in that case was that

"it is ...... most important in the public interest, that the Court of Appeal should be bound by its own previous decision on questions of law save for the three exceptions specified in Young v Bristol Aeroplane Co. Ltd. 1944 K. B. 718".

If there are conflicting decisions of equal authority, the court has no alternative to deciding which (if either) it will follow.

3. It was contended on behalf of the Attorney General that in the years immediately following the creation of this court the test which was repeatedly applied in deciding whether to alter a sentence on review was that expressed in the statute itself - namely whether the sentence was manifestly inadequate or excessive or wrong in principle - and that in Attorney General v Yim Yee-kwong Application for Review 1981 No. 6 the court reverted to a test enshrined in words which had been adversely criticised, i.e. whether the court felt a sense of shock or outrage. Two things must be said about the decision in Attorney General v Yim Yee-kwong. First, the case was argued on one side only,   because the Attorney General had indicated that he was not seeking an alteration of the sentence imposed on the defendant. The case is, therefore, an authority of no great weight. Secondly, the court there expressly purported to follow Attorney General v Lam Kam-tai 1972 H. K. L. R. 324, a case which, we think, never laid down a test different from the one which has been generally applied. In that case at p. 328 Rigby, C. J., delivering the judgment of the court said:

"Is the sentence so manifestly inadequate or so grossly excessive that it leaves one with a sense of shock or outrage? Was the punishment imposed so grossly excessive or so Manifestly inadequate in the circumstances that no judge or magistrate exercising a proper judicial discretion ought to have imposed it? Is the sentence out of all proportion to the gravity of the offence? In our view, these are the principles and these are the tests which this court ought to apply in considering applications brought before it under the provisions of section 81A of the Criminal procedure Ordinance."

Although the Chief Justice did refer to "principles and tests", it is clear that in truth they were merely indications of cases where the one test of manifest inadequacy would be satisfied. That was the view taken by the court in Attorney General v Ting Chin-kong Application for Review 1983 No. 6, where we suggested that the words "sense of shock and outrage" were likely to cause misunderstanding and were, in any event, inappropriate to the judicial task of assessing sentence. No case has been cited where a court has held that although a sentence was manifestly inadequate it would not interfere because it did not feel a sense of shock or outrage and we are not persuaded that such a course has ever been contemplated. When the Chief Justice in Attorney General v Lam Kam-tai said at p. 327 that the terms "manifestly inadequate" and "manifestly excessive" for the purpose of s. 81A "imposed a much stricter test in relation to the sentence imposed by the trial court than the test that would justify an Appellate Court in interfering with a sentence on the hearing of an appeal brought by a convicted person", we think that was inconsistent with the rest of his judgment. It may be that he was intending to do no more than emphasise that a judge brought up in the Common Law tradition would be less easily persuaded that a sentence was manifestly inadequate than he might be persuaded that a sentence was manifestly excessive. That would have been merely an example of the application of the maxim that the court will act in favorem libertatis: it would not alter the test itself. Whether or not that was the intention, this court is unanimously of the view that the test to be applied here is whether the sentences were manifestly inadequate and that the use of the words "sense of shock or outrage" in this connection should be firmly discouraged. The words "manifestly inadequate" mean precisely what they say.

4. It follows from what we have just said that the test of manifest inadequacy is no different from the test of manifest excessiveness and that the same test must be applied whether the case happens to be an appeal brought by the appellant or a review at the instance of the Attorney General. Nevertheless, we emphasize that this court will be much more easily persuaded that a sentence is manifestly excessive than that it is manifestly inadequate - not because the test is different but because there is a presumption in favorem libertatis which the Crown has to overcome: see Reg. v Bitter (1981) 27 S. A. S. R. 183, 185. The power of review was conferred to correct errors in exceptional cases and the court will be jealous to prevent encroachment on the discretion of judges and magistrates to impose a lenient sentence as they may think appropriate, provided that the sentence is one which in all the circumstances could reasonably be passed.

5. The second suggested area of conflict relates to the procedure to be followed on applications for review. Here again the conflict is more apparent than real. It is true that, following what I said in Re Applications for Review of Sentences 1972 H. K. L. R. 370, 413, it has been held by the court that the Attorney General should not be allowed to "argue" in favour of a higher sentence and that he had no right of reply, but equally it has always been accepted that there were matters of fact which the Attorney General could properly lay before this court. Some may regard that as "argument", but for my part I have never contemplated that the Attorney General's undoubted right of audience conferred by s. 81B was any more restricted than Mr. Lucas now accepts that it is. In particular, when I said that there was no right of reply I did not mean to suggest that the Attorney General did not have the right to correct mis-statements of fact or to answer any mis-statements of legal principle made on behalf of the respondent: all that any of us has sought to do is to prevent an undignified wrangle, with counsel for the Crown pressing the court to impose harsh sentences. The view was taken that the Legislature had provided a right to apply for "review" rather than a right of "appeal" in recognition of the attitude traditionally taken by the Crown towards matters of sentence. In endeavouring to emphasise this assumed distinction some of us may have expressed ourselves badly. Provided that one remembers that in this type of proceeding (as at first instance) counsel for the Crown is a minister of justice, in the final analysis there may well be no real distinction between a review and an appeal. It must be left to the court in each individual case to ensure that counsel does not go beyond the bounds of propriety and we shall not attempt to lay down any guidelines. It is enough to say that where the application is based upon an error of principle it is incumbent on the Attorney General to identify the nature of the error alleged, and it goes without saying that he is entitled to cite authority to establish the error. Where it is alleged that a sentence is manifestly inadequate or manifestly excessive, he must clearly be allowed to say which, although it would be strange if that matter were in doubt. He may properly draw attention to any matter appearing on the record, but may not adduce new evidence (for example as to the incidence of a particular crime) with a view to an increase of sentence: s.83V (5). Previously decided cases may be cited for the purpose of showing that the sentence under review is substantially and unjustifiably out of line with the usual tariff for that kind of offence.

6. Turning to the particular sentences herein question,  we dealt first with Application 1983 No. 5. At first sight the Respondent was fortunate that he was charged under s.19 and not under s.17 of the offences against the Person Ordinance. The wound inflicted was an extremely serious one and the offence was aggravated by the fact that the victim was a public official in the course of carrying out his duties. We sympathize with the trial judge, who experienced great difficulty in assessing the sentence by reason of the personal circumstances of the offender, a man of 67 who had apparently persuaded himself that the victim and his colleagues were about to take action which he was justified in opposing with force. There was, however, no evidence that the proposed action exceeded their lawful powers or that the Respondent had any reason to believe that it did. We think the judge was in error in suggesting that, because the Respondent was not violent by nature and acted on the spur of the moments he did not intend the wound he in fact caused. He may not have intended to cause such a serious wound, but, he did intend to cause the wound. The judge thought that this was the sort of case where a suspended prison sentence, "plus compensation to the victim", was appropriate and yet the Respondent did not deserve an immediate sentence of imprisonment. An order for compensation is, in our view, irrelevant to sentence save in so far as it may affect the ability of the defendant to pay a fine: the power to award compensation in a criminal court merely provides a means whereby compensation may be awarded summarily without the necessity of civil proceedings. The fact that the victim of a wounding may bring civil proceedings does not affect the sentence which ought to be passed, nor should an order for the payment of compensation. Secondly, however illogical and, indeed, absurd it may seem, we are bound by authority to hold that a suspended sentence of imprisonment may not be passed unless an immediate sentence of imprisonment would be appropriate.

7. Reluctant as we were to send this Respondent to prison, we were of opinion that a sentence of imprisonment was inevitable and that a fine was wholly inappropriate. Although we accepted that "a deterrent sentence" should not be imposed on a first offender (Ho Kau v Reg. 1978 H. K. L. R. 197) that does not mean that the deterrent element in a sentence is to be totally ignored, and the court must always bear in mind that undue leniency may encourage others to commit similar offences. However, we felt that the circumstances of the Respondent did justify our showing a large degree of leniency and we substituted a term of three months' imprisonment.

8. In Application 1983 No. 7 we were never in doubt that a sentence of twelve months' imprisonment was manifestly inadequate and the learned District Judge has indicated that he would have passed a heavier sentence had he appreciated that the drug, which had been referred to as "cannabis", was in fact something different. The Respondent had in his possession over 5 kilogrammes of resin containing 132.3 grammes of tetrahydrocannabinol. Even taking into account the facts that the Respondent was a courier and that he was a foreigner who would have to serve his sentence amongst persons the majority of whom would not speak his language, we came to the conclusion that we ought to substitute a sentence of 2½years' imprisonment.