The Queen v. Chan Yau-hang and Anothers
Read the full judgment text of CACC 311/1983 on BabelCite. This Court of Appeal judgment.
1. The two applicants were convicted before the District Court on three charges, two of assault occasioning actual bodily harm and one of false imprisonment. They were sentenced to 18 months', 2½ years and 3 years' imprisonment, the sentences to run concurrently.
|
CACC000311/1983 [District Court acting in excess of jurisdiction.]
BETWEEN:
Coram: Roberts, C.J., Yang & Barker, JJ.A. Date: 8th & 9th September, 1983. ---------------- JUDGMENT ---------------- Roberts, C.J.: 1. The two applicants were convicted before the District Court on three charges, two of assault occasioning actual bodily harm and one of false imprisonment. They were sentenced to 18 months', 2½ years and 3 years' imprisonment, the sentences to run concurrently. 2. During the hearing before us, counsel representing the applicants abandoned the applications for leave to appeal against conviction on the first and third charges, which were the assault charges. 3. Counsel for the Crown, similarly and in our view entirely rightly, conceded that he could not argue that the convictions of the two applicants on the sixth charge should be upheld. 4. The applications of both defendants, in relation to sentence were, however, proceeded with. Jurisdiction of District Court 5. We will deal, firstly, with the sixth charge and with the objections which were taken to it by Mr. Corrigan in the written grounds which he put forward and which were of great assistance to us. 6. The sixth charge was drafted in unfortunate terms. It read:
7. The first objection which can be taken is that it charged the defendants with two offences, that of false imprisonment, contrary to common law, and that of forcible detainer, contrary to section 42 of the Offences against the Person Ordinance, though it is misdescribed as false imprisonment also. 8. When the Particulars of Offence are looked at however, it is apparent that these are inappropriate to either the common law or the statutory offence. It is usual in charging the common law offence of false imprisonment to assert that the victim was unlawfully and injuriously imprisoned and detained against his will. 9. In charging an accused with the offence of forcible detainer, under section 42 of the Offences against the Person Ordinance, it is necessary to aver that the victim was, by force or fraud, detained against his will with intent to procure a ransom or benefit for his liberation. 10. These particulars satisfy the requirements of neither offence. Furthermore, and this is a matter of some general importance, if it had been possible to regard the charge as an effective one, for the purposes of section 42, it would nevertheless not have been within the jurisdiction of the District Court to try that offence at ail. 11. Part III of the Second Schedule to the Magistrates Ordinance, read in conjunction with section 88 of that Ordinance, lists those indictable offences, which may not be transferred to the District Court and thus may not be tried by the District Court. In that prohibited list appears a paragraph which removes from the District Court jurisdiction any offence which is punishable with imprisonment for life, except a number of specific offences which are then listed. The commonest of these, perhaps, is that of robbery, which is punishable by life imprisonment but which is triable by the District Court. 12. What has clearly happened, is that there has been an oversight and the Schedule to which I have referred was not amended at the same time as section 42 of the Offences against the Person Ordinance was amended in 1982, to increase the maximum penalty for that offence from 14 years to life imprisonment. No doubt the Crown would wish to consider making the necessary amendment to that Schedule. 13. Therefore, we refuse the applications for leave to appeal against conviction on the first and third charges. We grant the applications in relation to the sixth charge and quash the convictions of both defendants on that charge. Sentence 14. We turn now to the question of sentence. It is necessary to refer very briefly to the broad history of the case in order to assess whether the sentence imposed by the judge was a reasonable one. 15. A Mr. Tong, the victim, incurred a very heavy gambling debt at a very high rate of interest in Macau, the total outstanding amount on the date in question being about $165,000. This was owed to a Mr. Leung, a loan shark living in Macau. Mr. Tong having failed to repay, as required under the loan agreement, Mr. Leung took steps to put pressure on Mr. Tong to secure the repayment of the loan. This pressure consisted of Mr. Tong being seized by a number of men in Kowloon and beaten up, as a result of which he sustained a black-eye. This was the subject of the first charge, He was then taken to a room, where he was burnt with a cigarette, which left five burn marks on his body, one of which penetrated all layers of the skin, although the others only penetrated the first layer of the epidermis. 16. Had the first assault been an isolated matter, without any background, such as there was to this case, a term of imprisonment of eighteen months, would have been a very severe one for two men who, for practical purposes, were without previous convictions. 17. However, it is necessary, when determining the correct sentence, to take into account the fact that this was part of a course of conduct which was designed to terrify a debtor and to force him under threat of assault, and under actual assault and ill-treatment, to repay the loan which had been made to him. 18. We agreed with the view of the trial judge that there is a public interest in deterring those who might seek to collect debts by these appalling methods. 19. Although these sentences are substantial for first offenders, we have nevertheless come to the conclusion that they are justified and we are not prepared to interfere with them. 20. The applications for leave to appeal against sentence of both the applicants are therefore refused. Representation: A.J. Corrigan (D.L.A.) for all Appellants J.L. Cagney, S.C.C., for the Crown. |