The Queen v. Lai Chu Keung and Others

CACC000351/1985

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Kempster, J.A.& Nazareth, J.

Date of Hearing: 19th March 1986

Date of Judgment: 19th March 1986

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an application by four defendants for leave to appeal against their sentences.

2. The indictment contained three counts. The first two were alternative: the first was attempted murder and the second was wounding with intent, both those counts relating to the same victim: the third and fourth counts were further charges of wounding with intent in respect of two other persons.

3. The history of the matter is that the victims and some three other persons were in a stone hut, the home of the first victim. Two of the Applicants - the 1st and the 4th Applicant - armed with knives burst in upon the occupants. There was a dispute in existence relating to a counstruction site: it would appear from what is stated on the record that there was some kind of extortion racket and a dispute as to who was to benefit from this. What is euphemistically called negotiations" took place and no satisfactory result was achieved. Thereupon the parties decided that the matter should be settled subsequently, and in effect, by force of arms, but the 1st and the 4th Applicants proceeded immediately to attack the first, victim. They slashed his thigh with knives and inflicted a serious wound. They then left the hut. The occupants barred the door against any possible further attack. The two Applicants (the 1st and the 4th) who had taken part up to that point were then joined by the other two Applicants, who appear to have had baseball bats. They tried to get in at the door again but could not do so. The 1st Applicant then took one of the baseball bats and smashed a window, through which he and the 4th Defendant again entered the premises. A further assault took place on the first victim and upon the victims named in the 3rd and 4th courts, who also appear to have had some connection with this construction site. The other occupants of the house, although they must clearly have been terrified by what was going on, were not molested. The fight erupted out of the hut, at which stage the other two defendants (the 2nd and 3rd) proceeded to join in. The 4th Defendant appears to have been grappling with the first victim while the others proceeded to strike him with knives arid with the baseball bats. He suffered considerable injuries including a depressed fracture of the skull and a fracture of the elbow which was caused by a blow from a knife or chopper. Eventually the first victim was allowed to go and he appears to have walked away with his girl-friend to seek medical help. The assailants passed that couple on the road and no further assault took place. The two victims of the 3rd and 4th counts received cuts but nothing of the seriousness of the wounds inflicted on the first victim.

4. The charge of attempted murder was dropped after the case had been going on for a considerable number of days. This was a result which appeared to be inevitable once it, was shown that the assailants had walked past the first victim in the street without renewing the attack. It was obvious they must have seen that he was still alive and, had there been a real intent to kill, the attack would surely have been renewed.

5. When the first count was not proceeded with, the Applicants pleaded Guilty to the second count and the other two counts.

6. The sentences imposed were - on the 1st and 4th Defendants nine and a half years for wounding of the first victim (count 2) and sever, years on the other two counts. On the 2nd and 3rd Defendants the sentences were eight and a half years and five years. It has been submitted that these senterces are manifestly excessive and that they are outside the normal, tariff for offences of this kind.

7. A number of authorities have been cited to us. It is right to say that many of them were prior to 1980 and we think that little help is to be gained by looking at sentences in a former era. There has clearly been a tendency in, the last five years to raise the general tariff of sentences for this type of offence. In particular it is to be noted that there was a triad connection - I put it no higher than that - and that is a matter which the courts must always bear in mind. It is emphasized that there was no permanent injury, although the injuries were serious.

8. The learned judge, in passing the sentences he did, mentioned the fact that they had pleaded Guilty but said that in all the circumstances of the late plea he thought he could give only a minimum of credit. This probably means that he thought that a sentence in the region of ten years was an appropriate sentence.

9. Of the more recent authorities cited to us one stands out: that is Attorney General v KWOK Yik-kei Application for Review 1985 No. 10 which was decided by another division of this court as recently as 31st December 1985. In that case there was a robbery in the course of which the victim was chopped on the chin and on the neck and very grave injuries were caused. In the course of the judgment the court said that it thought that generally twelve years would have been an appropriate overall sentence for a case of that kind, but that, having regard to the youthful age and clear record of the two respondents to that application, a considerable allowance should have been made and ten years would have been right. In the event - those being reviews sentences of eight years were passed.

10. The judge made a distinction between the four Applicants in this case by reason of the fact that the 2nd and 3rd were not armed with knives and took part only at a late stage in the incident. It has been emphasized on behalf of the 4th Defendant that he showed remorse and that in the latter stage he was only struggling with the first victim and not raining blows on him.

11. We have not found this an easy case to decide and at one stage some of us thought that perhaps the sentences were unduly severe. However, it was a very serious case, in which grave injuries were inflicted; it was a combination of four persons; domestic premises were violated, knives were used in addition to the baseball bats; the attack was a sustained attack in the sense that having once assaulted the three victims the assailants came back and continued to assault them, and, having considered all the matters which have been addressed to us, we are unable to conclude that the sentences passed were not within the proper bracket which lay within the discretion of the judge. Therefore these applications must be dismissed.

12. I should mention that the 3rd Defendant had a suspended sentence outstanding at the time that these sentences were passed. The sentence was not activated. It does not, indeed, appear to have been expressly mentioned in the lower court. It may well be that the learned judge thought that, having regard to the length of the sentences that he proposed to impose in this case, it was a mere matter of academic interest, and in all the circumstances we shall say no more about it.

19th March 1986

Representation:

A Corrigan, Q.C. and Miss nnie Tam for 1st Applicant.

L. Lok for 2nd and 3rd Appellants

R. Rodway, Q.C. & A. Kan for 4th Appellant.