The Attorney General v. Wong Chi-fai
Read the full judgment text of on BabelCite. was delivered on 11 November 1972.
2. In seeking to put before us what he described as a basic principle in sentencing policy Mr. Sheath, Solicitor General, submitted that a court goes wrong in principle if it assesses a penalty on the basis of what is appropriate to the offender, and does so without regard to the requirements of public interest if public interest itself calls for an exemplary sentence with the purpose of deterring others in order to afford protection to potential victims.
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CAAR000009A/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) ----------------- -------------------------------------- APPLICATION FOR REVIEW NO. 8 OF 1972 -----------------
APPLICATION FOR REVIEW NO. 9 of 1972 -----------------
APPLICATION FOR REVIEW NO.11 of 1972 -----------------
APPLICATION FOR REVIEW NO.12 of 1972 -----------------
Coram: Rigby, C.J., Huggins, and Leonard, JJ. Date of Judgment: 11th November, 1972. ----------------- DECISION ----------------- Rigby, C.J.: These four applications - Nos. 8, 9, 11 and 12- by the Attorney General, under the recently introduced provisions of section 81A of the Criminal Procedure Ordinance, for leave to apply to review sentences imposed by the lower courts on the grounds that the sentences so imposed were manifestly inadequate, may conveniently be taken together since they involve general principles of sentencing policy. In two of the applications, Nos. 8 and 9, leave to apply to review was refused by the single judge but granted by this court. In application No. 8, for reasons to which I will later refer, the Attorney General no longer seeks to proceed with his application to review the sentence. In applications Nos. 11 and 12, leave to apply to review was given by the single judge. 2. In seeking to put before us what he described as a basic principle in sentencing policy Mr. Sheath, Solicitor General, submitted that a court goes wrong in principle if it assesses a penalty on the basis of what is appropriate to the offender, and does so without regard to the requirements of public interest if public interest itself calls for an exemplary sentence with the purpose of deterring others in order to afford protection to potential victims. 3. For my part, I would have thought that principle stated by the Solicitor General was so well recognized that it required no further repetition. It is the very basis and foundation of any civilized community that its members should be free to walk the streets, or to work in their shops or business premises and live in their homes, without fear of being attacked and assaulted, or threatened with assault, and stripped of their personal possessions. Failure to recognize this fact is to pave the way to anarchy and disorder. The courts must recognize the fact that there has been a substantial increase in crimes of violence and robbery committed by young persons. 4. It is a well -accepted and well-recognized principle of sentencing policy that where crimes of a particular kind are prevalent - and becoming increasingly prevalent - either generally or in a particular area, then purely rehabilitative measures which at other times might have been appropriate -and, indeed, proper - to deal with young offenders and or first offenders convicted of such crimes, must be reconsidered and revised and a different method of approach by all courts, in relation to sentencing policy, adopted. At the same time, it must be fully recognized and accepted that heavy penalties in themselves will not solve this problem or put an end to these offences. The best deterrent for the prevention of crime is the certainty of detection. I do not consider it out of place to say that certainty of detection will be immeasurably increased not only by greater co-operation on the part of the public in reporting such offences to the police and in coming forward as witnesses when so required, but also by a greater number of policemen being seen on the beat in the streets. Nothing is more likely to give confidence to the public and to deter prospective offenders than the sight of a police patrol -or even a solitary police officer in uniform - in the immediate vicinity. 5. In the scores of cases that come before the courts of this Colony - and remain unreported in the newspapers - the general principle enunciated by the Solicitor General is accepted and acted upon. The courts throughout the Colony are increasingly aware of the substantial increase in crimes of violence and robbery committed by young persons and this fact is, indeed, manifest from the considerably heavier penalties that have in recent months been imposed. It is in the occasional case that the judge or magistrate, for reasons usually associated with the offender himself rather than with the nature of the offence itself, imposes a sentence that is not in accord with these principled and is out of line with the normal sentence imposed in such cases. It was in the express recognition of the existence of that occasional case in which the penalty imposed appeared to be wholly incommensurate with the nature of the offence committed, coupled with the publicity almost inevitably and invariably given by the newspapers to the case itself and to the uneasiness and unfavourable public comment arising there from. that I myself proposed to the Attorney General the procedure which is now embodied in section 81A of the Criminal Procedure Ordinance and which grants leave to the Attorney General to apply to this court to review a sentence which is said to be either manifestly inadequate or wrong in principle. 6. It is in connection with the meaning to be attributed to the words "manifestly inadequate" that some confusion appears to have arisen. In an earlier application for review - No. 6 of 1972 - coming before this court, differently constituted, Mr. Stratton (Assistant to the Law Officers). appearing on behalf of the Attorney General, in answer to a specific question put by this court for the very purpose, expressly and in the clearest possible terms conceded that an application for leave to review by the Attorney General under section 81A of the Criminal Procedure Ordinance was not to be regarded as conferring a right of appeal upon the Attorney General analogous to that of a convicted person appealing against sentence and that a far more stringent test was to be applied by the appellate court in determining whether or not the sentence imposed by the lower court ought to be interfered with. We are now informed by the Solicitor General that Mr. Stratton did not mean to make any such concession and that he meant to say something entirely different. It is now said that what Mr. Stratton meant to say was, in effect, that if the standard to be applied in the ordinary criminal appeal by a convicted person was a standard less than the proposition that the appellate court would not interfere with a sentence imposed unless such sentence was manifestly excessive, then the Attorney General accepted that a more stringent test should apply where the Attorney General sought to submit that a sentence imposed was manifestly inadequate. As a corollary the Solicitor General, as I understood him, sought to say that what Mr. Stratton intended to say was that the correct principle in all appeals against sentence by convicted persons, whether from a Magistrate's Court, District Court or Supreme Court, was that the appellate court would not interfere with a sentence unless that sentence was manifestly excessive or wrong in principle. Therefore - so it is said - 7. The second matter to which I wish to allude is the learned Solicitor General's argument (advanced, as I understood him, in support of the principle with which this Court unhesitatingly agreed, that "a court errs in principle if it assesses a penalty on the basis of what is appropriate to the offender and does so without having due regard to the requirements of the public interest if these requirements call for an exemplary sentence to deter others with the object of affording protection to the public") that the task of the sentencer is two-fold: primarily he suggests it is a choice between an individualized sentence and what is called (unhappily in my view) a "tariff sentence". This primary decision is to be made (and I quote him) "expressly without to reference to the particular offender in front of the court". If and as soon as this primary consideration results in a decision that a so-called tariff sentence is required, then the only secondary decision called for is where on the "tariff" was the sentence to be located. I must say that I find this conception quite abhorrent. To suggest that one must decide the primary question without reference to the offender is tantamount to saying that in certain cases the sentencer should not have regard to the personality or personal circumstances of the offender at all. This I cannot believe to be the law nor can I believe that the Court of Criminal Appeal intended in such cases as Reg. v. Andrews and Others(1), by the use of such words as 8. "whatever the personal circumstances of the offender" to indicate that one should not, even in such cases as that, (an appalling example of group violence) keep in one's mind all the circumstances both of the offender and of the offence when deciding on the sentence. It is true that the personality, youth or personal circumstances of the offender may pale into insignificance because of the magnitude or prevalence of the offence in question, but I do not consider that the court in Andrew's Case intended to suggest more than that. It is clear from the report of Callaway and Neale (mentioned in 1971 Criminal Law Review at 176 and reported at 1971 Criminal Appeal Reports 283) which was also cited by the learned Solicitor General and which was also a case of affray accompanied by viciousness that the Lord Chief Justice did pay attention to the personal circumstances of the accused. The final paragraph of the judgment reads:
9. I can, in the cases quoted to us (as distinct from academic writings), find no warrant for the learned Solicitor General's suggestion that the task of the sentoncer may be accomplished more scientifically if he poses primary and secondary questions to himself. To suggest that he must do so and that he must disregard the individual before him when answering the primary question comes perilously close to saying that he must at the beginning of his deliberations close his mind to an essential fact and decide on the basis of expediency. The learned Solicitor General has suggested that this necessity arises from the weaknesses of that human nature, that magistrate are most concerned with the immediate human problem before them and in practice the only safe course is to make the primary decision of which he spoke. It is true that magistrates are acutely conscious of the human problems facing them, and that the daily parade of poverty and of the results of social injustice sharpens, rather than dulls, this consciousness. It is right that it should but there is a danger that it may lead to an imbalance between the attention paid to the offender and that paid to the offence. Again the assistance, on which we have had the occasion to comment with appreciation again and again, which the probation officers afford to magistrates may also at times lead to such an imbalance. Probation officers and other social welfare officers are in close relationship with the people on whom they report. They could not report properly unless they were. This relationship naturally gives rise to sympathy which may be mirrored in the recommendations which they make to magistrates. It is therefore of importance that, when considering these reports, magistrates should be on their guard against becoming too sympathetic to the offender and forgetting about the offence. I have no doubt that at times they err on the side of leniency for these reasons. I am not convinced, however, that if their decision be divided up into a primary one (in which they blot out of their minds an essential consideration) and a secondary one, the danger of error will be lessoned although the danger of the error of leniency may well be. It is noteworthy, that Mr. D.A. Thomas, with whom this concept of primary and secondary decisions finds favour, does not suggest that the primary decision be reached without considering the personality of the offender. He describes it as presenting it some cases an acute difficulty particularly.
This is not to say that when deciding it one must ignore the offender and concentrate on the offence alone. That he could be regarded as advocating such a course shows the danger of splitting up the problem. For "a matter of policy" may too easily become "a matter of expediency" and it is seldom indeed that expediency and justice can be equated. 10. The task of the sentencer, as I see it, is to take all the factors into consideration and having done so to determine the appropriate sentence to be granted. The problem may be so simply stated; it cannot be simply solved because all the factors relating to both the crime and the criminal must be considered and given the weight which the circumstances may from time to time demand. At this juncture of Hongkong's history, then a social conscience on the part of those in authority is beginning to emerge, when some effort is being made to combat the social injustices that exist, we must, I consider, be on our guard against letting that budding social conscience and that revulsion from social injustice persuade us to a leniency which amounts to an injustice to those who "are entitled to walk our streets in peace." Indeed leniency, based on the idea that the criminal guilty of violence to others has himself been the victim of social injustice prior to the commission of the crime and on some vague notion that because of his environment he is deprived of the free will he shows when he forms the necessary intent to commit the crime of violence of which he is guilty, is not only an injustice to society but is also an insult to the criminal himself. 11. To sum up I am convinced that on application for review the court should he even more loath to interfere than it is on appeals and that while the duty of the sentencer is to give due consideration to both the criminal and the crime the attention to be paid to the criminal and his personal needs must diminish as the seriousness and prevalence of the offence increases. Representation: (1) 1971 Crim. L.R. 175. IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) ----------------- APPLICATION FOR REVIEW NO. 8 OF 1972 -----------------
----------------- APPLICATION FOR REVIEW NO. 9 OF 1972 -----------------
----------------- APPLICATION FOR REVIEW NO.11 OF 1972 -----------------
----------------- APPLICATION FOR REVIEW NO.12 OF 1972 -----------------
----------------- Coram: Rigby, C.J., Huggins and Leonard, JJ. Date of Judgment: 11 November 1972 ----------------- DECISION ----------------- Huggins, J.: The learned Solicitor General advances two propositions:
Although I might quibble with the precise wording of it the first of these propositions appears to me to be so patently right that I believe it would be impossible to find a reasonable argument to the contrary. My quibble would be with the conjunction "if", for I think it would always be wrong to assess a penalty appropriate to the offender without having due regard to the requirements of the public interest. While the resulting penalty itself might not be wrong although the court had failed to have due regard to the public interest, a court "goes wrong in principle" - and fails in its duty - if it fails to consider all material factors. It is not necessary, and therefore not appropriate, that we should endeavour to provide a dissertation upon all the purposes of punishment, but for my part I accept without hesitation that deterrence is one of those purposes and one which is all too often overlooked at the present day. At every assize service held in the Cathedral for the past fifteen years or more we have been reminded of the words of St. Paul that "rulers are not a terror to good works, but to the evil". It is obvious that to the mind of the public at large in Hong Kong at the present time the element of terror is more apparent among those who do good works than among the evil doers. It should not be inferred that I think the courts should be dictated to by public opinion but at the same time public opinion is not to be ignored, more particularly if it is based upon solid foundations. Some find it all too easy to forget the demoralizing effects of criminal activities upon the immediate victims, let alone upon potential future victims, but this should not be. It must be remembered that failure by the courts to impose sentences which the thinking man in the street considers adequate may lead to various forms of self help both for protection and in retaliation. This, together with the effect of undue leniency on the criminally inclined, may eventually result in a break down of law and order. Blackstone in his Commentaries warns of the demoralizing effect of inadequate sentences (4 Blackstone's Commentaries 377):
In that case it might be said that those who fixed the penalty gave insufficient consideration both to the interests of the public and to the circumstances of the offender. In every case where a fixed penalty is not prescribed by law a balance must be maintained between the interests of the individual and the interests of the public, always remembering that the interests of the individual may sometimes require severity rather than leniency and the interest of the public may sometimes require leniency, to facilitate rehabilitation of the criminal, rather than severity. That having been said it must be recognised that there are cases (and for the moment I emphasize that I say "cases" and not "classes of case") where the circumstances are such that the public interest calls for a sentence in the assessment of which deterrence is the predominant factor. There are even cases where the need of deterrence is so great that, in the event, the sentence should not reflect at all the personal circumstances of the offender. In my view the modern tendency to regard rehabilitation of the criminal as of paramount importance has upset the balance which good sense demands. No doubt it is but the swing of the pendulum since the days when rehabilitation was almost entirely neglected, but this has produced an equal imbalance in another direction and is equally to be deprecated. The scales of justice must not be laid aside once a true verdict has been returned. 2. That brings me to the second proposition advanced on behalf of the Attorney General and I cannot say too clearly or too strongly that I utterly reject it. As I understand him the Solicitor General submits that at the outset a court must consider the offence alone and decide whether it calls for a deterrent sentence, no regard at all being had to the offender. He says that human limitations make this a practical necessity. I believe I am not less conscious of the frailties of our human nature than any other man - nor of the frailties of human judges in particular, having myself now held judicial office for over twenty years - but I do not accept that it is necessary or right to make a decision whether a deterrent sentence is appropriate before even considering the possible effect on the individual offender. The suggestion causes me a "sense of shock" (to use the phrase adopted from the South African decisions) far greater than does the sentence imposed in any one of the cases presently before us, because its implications are so far-reaching. Even in cases of murder, where the sentence is fixed by law, and even in times when minds were less tender than are the majority today, it has been thought proper that the circumstances of the individual criminal should be considered before deciding whether to issue a warrant of execution. It is true that that has been done as an administrative process, but that is not material to the present issue and no harm was done so long as the prerogative of mercy was exercised only in exceptional cases: it shows how great an importance has been attached to the circumstances of the particular offender. I repeat: the scales of justice must not be laid aside once a true verdict has been returned: the court must in each case weigh all the factors which are material to a decision upon the final sentence before making a decision of any sort. Of course there will be classes of case where the public interest so manifestly calls for a deterrent sentence that only most exceptional circumstances relating to the offender could outweigh the need to deter others, but we must never rule out the possibility that such exceptional circumstances may arise. English law always has stood, and I hope always will stand, against the adoption of fixed or minimum sentences for criminal offences. It is because every case is different that it has for centuries been thought right to give a wide discretion in the matter of sentence to the courts and if the courts have not always exercised their discretion wisely it does not necessarily follow that the principle is bad. If we were to say that in a particular class of case a particular sentence must be imposed we would be depriving not only the inferior courts but also ourselves of the discretion which exists under the law-we should by judicial legislation be doing what the Legislature has, rightly, been unwilling to do by statute. I will be no party to that. The most that this Court can do is to give some guidance by indicating in general terms and at a particular point of time what sort of sentence it thinks appropriate for the average case of a particular offence. Thus another division of this Court recently indicated that it thought that "it is only in the rarest of cases that a custodial sentence is not called for for the offence of robbery": Attorney General v. SHUM Shu-hong(1). I do not in any way dissent from that view and I hope to see a very much stronger line taken with the majority of those who terrorise the Queen's subjects as they go about their lawful occasions, but I nevertheless point to the fact that the court was careful to preserve the discretion of the judges and magistrates by recognizing that there may be (not necessarily will be) very rare cases where an exception must be made. The norm must be established by reference to the average offence and the average offender and once the norm has been established at the proper level I have no fear that harm will result if where the court thinks exceptional circumstances exist a measure of leniency is shown. The difficulty at present appears to me to stem from the fact that the Attorney General and the public are not satisfied that the exceptional case has not come to be treated as the norm. I regret that they are not entirely without justification. 3. In fairness to the Solicitor General I must add that at the end of his argument he said in answer to a question which I put to him that he would he content if the court were to indicate that in its view the protection of the public should loom as large in the mind of the court assessing sentence as do the interests of the defendant. That, I think, is precisely what the court should ensure. 4. I ought, perhaps, to say one further word about deterrent sentences. There are those who think that the courts have only to increase sentences sufficiently for crime to vanish. That is altogether too naive. It might be nearly true given a 100% detection rate over a long period and an utterly utterly sentencing policy, but we cannot hope for the one and public opinion would not accept the other. It also depends very much on the causes of each particular class of crime whether its incidence is like to be affected by deterrent sentences. Even where they are likely to be effective there is a maximum above which increased severity within acceptable limits will produce no corresponding deterrence. I think it is generally recognised that there will always be a hard core of offenders who will never be deterred. The maximum effective limit of severity may vary from time to time and it may be the duty of the courts, when circumstances demand, to ascertain that limit by experiment. The successful surgeon is not necessarily the one who makes the smallest incision. 5. Reference was made to the decision of another division of this Court in Attorney General v. LAM Kam-tai(2). The judges who sat in that case understood Mr. Stratton, who appeared on behalf of the Attorney General, to have conceded that the test applicable upon an application for review under s.81A of the Criminal Procedure Ordinance to ascertain whether a sentence was manifestly inadequate was stricter than the test applicable on all appeals against sentence. I think events have shown it to have been unfortunate that the question whether the test upon a review was the same as, or different from, the test upon an appeal was ever raised and ever discussed. For a reason which will appear it was almost inevitable that it would be raised, but the fact remains that it was not, and is not, necessary to define the test upon a review by reference to the test in fact applied upon an appeal. I understand that the concession made in those terms was a result of a question put in similar terms from the Bench and, trying to visualise the exchange which took place, I find myself in the gravest doubt whether everyone appreciated the full implications of what, was being asked and consequently what was being conceded. Indeed, while there can, I think, be no doubt at all as to what Mr. Stratton said, we are told from the Bar that he did not mean what he was understandably taken to mean. For myself, holding the view I do as to the correct test to be applied on an appeal, I do not see how Mr. Stratton could properly have made the concession which he was understood to be making. We are told that what in effect he was trying to say was that, some judges having held that upon an appeal from a magistrate the court can properly alter a sentence even though it does not consider that sentence to be "manifestly excessive" in the sense that those words normally bear, the burden on the Attorney General upon an application for review was heavier than the burden on an appellant on an appeal against sentence from a magistrate. I would accept at once the assurance from the Bar that that was what was intended, although it is obvious that the intention was not clearly expressed. The argument as apparently understood by the Court (and reproduced in its judgment) involved two assumptions which were not intended and which, as at present advised, I think were probably not justified. The first was that no distinction exists between the test which ought to be applied upon appeals from magistrates (under the Magistrates Ordinance) and the test which ought to be applied upon appeals from judges (under the Criminal Procedure Ordinance). The second was that upon an appeal from a judge this Court is not bound to apply the test, which has been so often stated, that a sentence should not be altered unless it is wrong in principle or manifestly excessive. As to the first assumption it is well known that judges of the Supreme Court when sitting alone on appeals from magistrates have held different opinions upon the question whether the Legislature has expressed an intention that the appellate court should have a wider discretion to interfere with sentences in such cases than this Court has to interfere with sentences on appeal from judges. If Mr. Stratton based his concession upon the view that a wider discretion does exist upon appeals from magistrates, it is particularly unfortunate that he did not emphasise this, because the Court was led to think that the same concession would be made in all cases. Whether the second assumption which apparently formed part of the argument as understood by the Court in the earlier case, namely that upon an appeal to this Court from a sentence imposed by a judge the proper test is not the "manifestly excessive" test, would have been accepted by the Solicitor General in the present case we do not know: certainly nothing was said either from the Bench or from the Bar which suggested that this assumption ought to be made, but both the other members of the Court have indicated to me that they think it is a valid assumption. As at present advised I think that even if it be valid (as I incline to think it is not) it is in any event not so clearly valid that we ought to overrule clear decisions of this Court that the "manifestly excessive" test is the test which ought to be applied: see, for example, Nomura v. R.(3); Reg. v. Fleming(4); KAN Chik-ting v. Reg(5) ; Reg. v. Lamke(6); However, this is not an appeal to which s.81 of the Criminal Procedure Ordinance applies and the matter has not been argued before us, for it is not strictly relevant to the decision of these applications. 6. A comparison between the test to be applied upon a review and the test or tests to be applied upon an appeal was introduced into the present case in the belief that it would help to clarify the real issue in the case. In the event its introduction has had the effect of raising two somewhat controversial side issues and thus of making a massive smoke screen which is tending to divert attention from the real issue. The real issue is, what did the Legislature mean when it used the words "manifestly inadequate" and "manifestly excessive" in s.81A? I have not the slightest doubt that those phrases were chosen because the courts both in England and in Hong Kong had stated, and had in many cases applied, a test in relation to appeals which incorporated the phrase "manifestly excessive". That such a test had been stated was beyond dispute and its nature had been well established. The fact (if it was a fact) that the test had not been applied in every case could not alter the nature of the test. I do not pretend that it has always been applied, but to what extent it has not been applied and whether the failure to apply it is to be explained on the basis that the test is not of universal application or on some other basis are matters which do not have to be decided here. I am the more unwilling to embark upon a consideration of these matters in the present case because we have been unanimous in our judgments as to the correct disposition of each of the applications before us and I believe it may well prove that any difference of opinion which may exist between us upon those matters is of no practical importance. As I say, all which seems to no to be pertinent is the facts that the test has been stated and that its nature has been well established: the practice of the courts in disposing of appeals is irrelevant. 7. But for observations which have been made I would have thought it unnecessary to express my view that the word "manifestly" as used in the Ordinance in relation to reviews cannot mean something different from the same word as it has been used by the courts in relation to appeals under the Criminal Appeal Act 1907 and s.81(4) of the Criminal Procedure Ordinance. As I understood it there was a suggestion that the fact that a review is granted upon the application of the Attorney General is sufficient reason for interpreting the word when it appears in the Ordinance more strictly. In other words, upon a review it was said that the excessiveness or inadequacy of the sentence must be more manifest than must the excessiveness be when the "manifestly excessive" test is applied upon an appeal. I am unable to read into the language used by the Legislature an intention to introduce such a distinction. On the contrary, the very fact that the Legislature saw fit to employ the same word is the strongest indication that it meant the test to be the same. Indeed, I ask myself what the Legislature would have had to do to indicate more clearly an intention that a similar test should be applied upon a review to the "manifestly excessive" test which has been repeatedly stated as being applicable upon an appeal, and the only possible answer seems to me to be that it would have had to indulge in verbal contortions. I do not overlook the fact that a convicted person now suffers, by virtue of s.81A the added punishment that for a limited period (which the court should be very slow indeed to extend) he stands in peril of having his sentence increased upon the motion of the Attorney General. This disadvantage will usually arise from no act, let alone from any fault, of his own: it will arise from the Legislature's desire to see justice done to both parties and not merely to the convicted person. The Solicitor General, in answer to a question which I put to him, seemed prepared to concede that this disadvantage was a factor which the court might take into account in deciding upon the sentence to be substituted for that imposed by the lower court, but for my part I cannot at the moment conceive of a case where it could ever be a factor of sufficient weight to justify the conclusion that a sentence which otherwise was manifestly inadequate ought to be regarded as not being manifestly inadequate. To hold that it could would put it in the power of the court to frustrate what I believe to be the clear intention of the Legislature and not to be justified by the language of the statute. 8. Again, it has been suggested that the fact that the Attorney General has no right of appeal but only a right to apply for a review in some way affects this question of interpretation. In my view that cannot be right. That a distinction between a review and an appeal exists, and was intended, is beyond doubt. What is the distinction? As I understand it it is one purely of procedure. The powers of the court on a review under s.81A are laid down by the Legislature. If they were not, we might have had an unfettered discretion but, as it is, we must look to the words of the statute and I do not see why s.81B, which defines the powers of the court upon a review, should be differently interpreted because the Legislature has granted a right of review rather than a right of appeal. Some may well think that the distinction between a review and an appeal is insubstantial, but I believe it to be important. Upon an appeal the appellant has the right to urge the court to change the decision of the lower court, to present arguments in favour of such a change and to reply to arguments advanced by the other side. On a review of a sentence I apprehend it to be the duty of the court to consider the decision without pressure from the applicant. The significance of providing that the attorney General should have a right to apply for a review rather than a right to appeal will thus be obvious to anyone acquainted with the traditions of the English Bar: as is stated by Boulton in his Conduct and Etiquette at the Bar (4th Ed.) at 73:
That being the duty of counsel for the Crown at first instance it cannot be. any less undesirable that he should attempt by advocacy to influence the court towards a more severe sentence in subsequent proceedings in a higher court. The duty of counsel for the Crown on an appeal against sentence was considered by this Court in Reg. v. YUK Chi-fung(7) and is similar to that at first instance. It is inevitable that by the very fact of applying for leave to apply for a review of a sentence on the ground of manifest inadequacy the Attorney General should "advocate" a more severe sentence, but, allowing that he may go thus far, in my view he should not in any other way go outside the rule stated by Boulton. Strictly it is not even necessary that he should indicate in his application the basis of the application, except where the application is on the basis that the sentence is "not authorised by law" or "wrong in principle". In such a case he should go on to indicate the extent of the authority given by law which it is said has been exceeded or the principle which it is said has been broken. If the reason for the application is that the sentence is manifestly excessive or manifestly inadequate then unless the court can see, without being told, which view the Attorney General is likely to hold, it is an application which ought never to have been made. When leave to apply is granted, then upon the application for review (which in truth would more conveniently have been described simply as "the review") the Attorney General should normally do no more than read the relevant parts of the record. He certainly has no right of reply. Perhaps I should add that I do not for my part think it was wrong for us to hear the Solicitor General upon the matter of construction which formed the substance of his argument, although I confess to having shared with Leonard, J. some anxiety that the detail of his argument went beyond what should have been allowed. 9. In Application for Review No.6 of 1972 the Court adopted the test used by the South African courts in relation to appeals against sentence, i.e. whether the sentence was such as "to cause a sense of shock". Speaking for myself I have some doubts whether that is any improvement on the language used by the Legislature, for clearly some judges may be more easily shocked than others. However, in that case the Court said:
There can be no "appeal" against manifest inadequacy and the Court must in the context have meant "or an application for review on the ground of manifest inadequacy". The Court further said that the sentence must appear to be "out of all proportion to the gravity of the offence". I would only wish to add to this last quotation
and it is clear from the judgments now being delivered by the other members of the Court that they could not dissent from that. 10. Now that the principles on which the Court is required to act have been declared, it may well be that the Attorney General will desire to exercise his right to apply for leave to apply for a review sparingly and I would hope that he well rarely find a case in which it is necessary to seek a review by this Court. However, that is a matter for his discretion and we must deal with each application on its merits in the manner prescribed by law and must not attempt to usurp the discretion vested in him. Representation: (1) Cr. App. No. 530 of 1972. (2) Application for Review No.6 of 1972 (3) (1934) 27 H.K.L.R.31 (4) 1960 H.K.L.R. 125, 140 (5) 1963 H.K.L.R. 721 732 (6) 1965 H.K.L.R. 251, 258 (7) 1966 H.K.L.R. 518 at p.521. IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) ----------------- APPLICATION FOR REVIEW NO. 8 OF 1972 -----------------
----------------- APPLICATION FOR REVIEW NO. 9 OF 1972 -----------------
----------------- APPLICATION FOR REVIEW NO.11 OF 1972 -----------------
----------------- APPLICATION FOR REVIEW NO.12 OF 1972 -----------------
----------------- Coram: Rigby, C.J., Huggins and Leonard, JJ. Date of Judgment: 11 November 1972 ----------------- DECISION ----------------- Leonard, J.: We have disposed of these applications for review other than Application No.8. That was an application by the then Acting Attorney General to have his application for leave to apply to the Full Court for review of the sentence imposed on the 25th August 1972 in case No. C.B. 20103 of 1972 determined by the Full Court, the same having earlier been refused by the Chief Justice. The application was refused by this Court and we promised to give reasons in writing. I agree with the reasons given by the Chief Justice for this refusal in fulfillment of this promise. However, when making this and other similar applications the learned Solicitor General argued that various sentences were "manifestly inadequate" within the meaning of that phrase in Section 81B of the Criminal Procedure Ordinance (Cap. 221). I am in considerable doubt as to whether the learned Solicitor General should have been heard to argue in these cases for what is conferred by Section 81A of the Ordinance is a right to apply for a review with leave. No right of appeal is conferred. The legislature clearly intended to distinguish between a right of appeal and a right to apply, with leave, for a review for the section follows immediately that conferring the right to appeal on convicted persons. The distinction must, at the very least, be one of procedure and therefore the duty of the representative of the Attorney General, as I see it, is to do no more than lay before the Full Court all the facts available to the Court below so that the Full Court may itself decide, without argument other than from the respondent, whether the sentence falls within Section 81B subsection 1(a) of the Criminal Procedure Ordinance. It would be otherwise if a right of appeal were conferred by the Section. 2. Be that as it may, we permitted the learned Solicitor General to address us by way of argument on the matters of principle and as he has raised some important questions relating to the Court's approach to these reviews I think it proper to indicate my views on them. 3. Firstly, I would like to make it clear that I would in no way resile from the views expressed by this Court with the assent of Mr. Stratton on behalf of the Attorney General in Application for Review No. 6 of 1972. 4. The learned Solicitor General, if I understood him aright, suggests that all Mr. Stratton intended was to say that this Court should not, on a review, interfere capriciously with a sentence as, he argues, I, for example, have done on appeal. 5. For my part, in the absence of additional evidence or information (and it was on this most important qualification that. I relied in Criminal Appeal No.341 of 1972 to which case I gathered, that the learned Solicitor General referred) I consider that I should, when hearing appeals against sentence imposed in the Magistrate's Court refrain from interference, notwithstanding the powers conferred by the Magistrates Ordinance, unless the sentence is manifestly excessive, inadequate or wrong in principle, in exactly the same way as I would refrain from interference when sitting in the Full Court on appeals against sentence from the District Court or from the High Court. 6. Howsoever I certainly did not understand Mr. Stratton, when he said that this Court should apply "a much higher test" in these reviews to be alluding to such cases as Criminal Appeal No. 341 of 1972. Be that as it may. I am now convinced (although I was somewhat surprised by it at the time) that on a true interpretation of the relevant legislation Mr. Stratton would have been quite correct to make the concession which I had thought him to make. 7. I would reiterate that what the Attorney General is given by Section 81A is the right to apply for the review of any sentence. He is not given - and this must have been intentional - a right of appeal. The distinction I had originally regarded as itself indicating that the Full Court should be slower to interfere than it would be on an appeal by a convicted person. On consideration I am of the opinion that the distinction May be procedural only. However, the sections conferring the right to apply for a review are foreign to the traditions of our law summed up in the maxim" nemo debet bis vexari pro eadem causa". Prior to this legislation if an accused person decided not to appeal against sentence he had a right to regard the matter as closed. Because of this legislation he can never so regard it, for, theoretically at any rate, the Attorney General may seek leave to apply for a review out of time. Such an application has in fact already been made. True, an application under the section may not fall strictly within the primary meaning of then maxim (which prevents a person from being tried twice for the same offence) but reviews under the section do seem to me to offend against the spirit giving life to the maxim. When a convicted person appeals against sentence he himself is the author of his own misfortune if the court decides to increase it; this is not so, and the convicted person is the more deserving of sympathy, where the sentence is reviewed under sections 81A and 81B, Again Courts of Appeal in England by no means universally refrain from interference when sentences are not manifestly excessive, or wrong in principle. D.A. Thomas in the introduction to his book "Principles of Sentencing" (which was referred to by the learned Solicitor General) suggests that there are as many as five situations in which the Court of Appeal will interfere. The first is where a sentence based on concepts of deterrence and retention is varied to one of the rehabilitative measures; the second where one individualized sentence is substituted for another; the third where an error in a specific principle such as those relating to consecutive sentences appears; the fourth where the Trial Judge has failed to make allowance for a mitigating factor; and the fifth where the sentence is "substantially out of scale". These considerations enable me to accept the idea of a double standard being employed by this Court in considering whether or not to interfere with sentences passed elsewhere and convince me that this Court should be slower to increase a sentence on review than it would be, in a suitable case, to increase a sentence on appeal against its severity by a convicted person. 8. Mr. Stratton intended to say - and the solicitor General does say - that there was, and is, in fact, no distinction in principle between an appeal by a convicted person on the ground that the sentence was too severe and an application for review by the Attorney General on the ground that the sentence was manifestly inadequate. That may provide a very interesting argument but it certainly bears no resemblance whatsoever to what Mr. Stratton did say, nor - from what I was able to understand - what he manifested an expressed intention of saying. 9. However, be that as it may, it is necessary to consider the submission that the Solicitor General now makes, to wit, that an application from the Attorney General for leave to apply for review of a sentence on the ground that it is manifestly inadequate or wrong in principle is analogous to, and in no way different from, the right of a convicted person to appeal against a sentence imposed by a magistrate or an application for leave to appeal by a convicted person against a sentence imposed in the District Court or Supreme Court. For my part, I am satisfied that there is a substantial distinction and I adhere to the view that the court expressed in Application No.6 of 1972 and to the concession made by Mr. Stratton - whether or not he meant to say what he did in fact say - that a far more stringent test should be applied by the Full Court in considering an application by the Attorney General for leave to apply for review of sentence on the grounds of manifest inadequacy than the test required or imposed by the same court in an appeal by a convicted person against sentence. 10. To the best of my belief - and certainly to the extent of my intention - and I speak with some knowledge of the circumstances leading to the introduction of this particular piece of legislation - the word "manifestly" was expressly inserted in this section before the word "inadequate11 to emphasize the burden placed upon the Attorney General to show that the sentence imposed was so inadequate as - to quote again the words this court used in Application No. 6 of 1972 - "to cause a sense of shock or outrage." 11. I am very well aware that the Court of Criminal Appeal in the United Kingdom - or, as it is now called, the Court of Appeal, Criminal Division - has from time to time, and in the appropriate case, said that it would not interfere with a sentence unless it was manifestly excessive in the circumstances of the case or wrong in principle. In Criminal Appeal Sum Kim-wah and Another v. The Queen(1), in dealing with an appeal from a magistrate's court, I said:-
12. In Criminal Appeal No.715/68 Tang Wing-sand and Others v. The Queen (2) the learned judge who heard that appeal expressed the view that the conclusion which I had drawn from a consideration of a considerable number of English cases was wrong and, indeed, he went on to say:-
13. I am now glad of an opportunity to reaffirm the view that I expressed in the Sum Kim-wah case(1)and I propose to support it by reference to a number of cases heard and decided in the Court of Criminal Appeal and its successor the Court of Appeal, Criminal Division in England.
14. The forty-two cases to which I have referred, excluding the 1928 case of R. v. Rose(3) cover a period of some fourteen years. In none of these cases, and there are others of a like nature, did the appellate court refrain from interfering with the sentence on the ground that the sentence, although severe, was either "manifestly excessive" or "wrong in principle". On the contrary, in each case it interfered with the sentence because it thought it right and proper to do so. In many instances it has reduced a sentence as "an act of mercy" where there were factors present and where the court, having regard to those factors, considered it appropriate that it should do so. In other instances, taking a "calculated risk" it has reduced a sentence or imposed an entirely different type of sentence e.g. probation or a suspended sentence, where it has thought it proper so to do. 15. I would, therefore, reaffirm the view that I expressed in the Sum Kim-wah and Another case(1) and the passage in that judgment, to which I have already adverted. Generally speaking, it is in cases involving very serious offences where heavy sentences have been imposed that the Appellate Court in England, when declining to interfere with such sentences, has relied upon the principle that the sentences, although undoubtedly severe, were not so manifestly excessive as to justify the court in interfering with them or, perhaps more frequently, have said that the sentences were "not wrong in principle." 16. There is a further aspect to be considered when dealing with appeals from Magistrates Courts as distinct from the District Court or Supreme Court. A person convicted by the District Court or the Supreme Court has no right of appeal against sentence; he has to apply for leave to appeal. Such an application can, in fact, be summarily dismissed by a single judge exercising the powers of the appellate court. The position is the same in the United Kingdom. It may well be, that in deciding whether or not to grant leave to appeal the practice has developed in the appellate court, as in the United Kingdom, that it will not grant leave to appeal unless the sentence imposed by the trial court was, in fact, manifestly excessive or wrong in principle. It is, as I have said, a convenient principle of practice which the appellate court, when it thinks fit so to do, can fall back upon when it decides to refuse leave to appeal in respect of particularly serious offences where heavy sentences have been imposed - sentences perhaps heavier than any individual judge, sitting on the Appellate Court, if he had been sitting as the trial judge, would himself have imposed. 17. The position is, however, entirely different when considering an appeal against a sentence imposed in a Magistrate's Court. There, the convicted offender does not require any leave to appeal against his sentence; he appeals as of right. Section 119(d) of the Magistrates Ordinance (Cap. 227) provides that, upon bearing of an appeal:-
Those words confer, by statute, an absolute and unfettered discretion upon the appellate court. Whilst I entirely accept the principle, hallowed by the passage of time and by long usage, that there is, in general, a limited bracket of sentence - one might almost call it a tariff - applicable to different kinds of offences, and if the sentence imposed by the magistrate, in the exercise of the undoubted discretion vested in him, comes within that limited bracket an appellate court will not, as a matter of practice, normally interfere with that sentence, in the last analysis the appellate court, when dealing with appeals from magistrates, has not only a right but a duty to interfere with a sentence imposed and make such order "as he thinks just". As the learned judge said in the TANG Wing-sang case(2) :-
18. The words "as he thinks just", appearing in section 119(d) of the Magistrates Ordinance remain clear and unqualified and they are not to be fettered and restricted by the addition of words which are plainly not present in the legislation itself. 19. I have dealt at some length with these matters since I wish to make it quite clear, at the risk of come prolixity, that I do not in any way resile from the view which I expressed in the Sum Kim-wah case (1). As I have endeavoured to show, by reference to the large number of cases quoted, the principle - if one may call it a principle - resorted to from time to time by the former Court of Criminal Appeal, now the Court of Appeal, Criminal Division, in the United Kingdom, that it will not interfere with a sentence unless it is manifestly excessive or wrong in principle, is a proposition to which that court resorts when it seeks to uphold a particularly heavy sentence for a particularly serious offence; it is not a principle of universal application. When that court, upon the whole of the circumstances relevant to the consideration of the case before it, thinks it proper to vary a sentence imposed or alter it to an entirely different sentence or order, it does so regardless of any so-called principle of not interfering unless the sentence was manifestly excessive or wrong in principle. On the other hand, the words "manifestly excessive or wrong in principle" are expressly and -certainly as far as I understood the position - intentionally written into section 81A of the Criminal Procedure Ordinance. They are words of universal application directly relevant to the consideration of every application for leave to review a sentence which is made to the Full Court. For these reasons, for my Part, I am entirely satisfied that there is a very substantial difference between the principles which should govern this court when considering an appeal against sentence by the ordinary convicted offender and when considering an application by the Attorney General for leave to review a sentence on the grounds of it being manifestly inadequate or wrong in principle. For my part, I am, therefore, quite unable to accept the Solicitor General's contention in this respect. 20. Prior to the delivery of these judgments, we have already dealt with the Attorney General's Application for Review in cases 9, 11 and 12 and it only remains to give our reasons - which we earlier said we would so do - for dismissing the Application for Review in application No.8. In this particular case the respondent, a youth of 19. pleaded guilty to the charge preferred against him of unlawful and malicious wounding. The Statement of Facts produced before the court and, according to the record, admitted by the respondent, were that at about 1945 hours on 17th August, 1972, as the victim, a mason by occupation, was on his way home he was suddenly attacked by four unknown Chinese males - one of whom was the respondent - who were armed with water pipes. The victim sustained some injuries but, fortunately, was able to make good his escape. He was later admitted to the Tang Shiu Kin Hospital where he was found to have the following injuries:
21. The victim was discharged from hospital on 20th August, 1972. On information received, the respondent was arrested on the 23rd August, 1972 and at an identification parade was positively identified by the victim as one of his assailants. On those facts the learned magistrate imposed a fine of $50 and ordered the respondent to pay compensation to the victim in the sum of $150. The Attorney General applied for leave to review the sentence on the ground that it was "manifestly inadequate". In accordance with the practice followed, the magistrate was asked for his reasons for sentence. It was in those circumstances that the application came before the Full Court. 22. The reasons given by the magistrate for the sentence which he imposed were:-
23. I am bound to say that some of the reasons given by the learned magistrate are far from satisfactory and others would appear to be inconsistent with the facts as stated - and presumably accepted: they were certainly not contradicted at the hearing before the magistrate. 24. The first paragraph of those reasons, in making reference to the total absence of injuries suffered by the victim, would appear to be totally inconsistent with the medical finding to which I have already referred. If there was reason to doubt the accuracy of the medical findings them, in my view, the case should have been adjourned and the position clarified. 25. The second reason given, namely, that the respondent was "taking revenge" for "some undisclosed reason", on the face of it, provides neither justification nor mitigation for the assault. If there was some valid reason for the assault them it should have been disclosed. If there was no valid reason, then it merely aggravated the circumstances of the assault. In any event, if there was reason for the assault then it fortified the conclusion that this was a deliberate and premeditated assault and, to that extent, rendered the offence more serious. 26. As to the third reason given by the magistrate: if there was, in fact "misleading information" as to the nature of the assault then, again, I repeat he should have adjourned the case and sought to clarify the position -if necessary, by calling the medical officer who had prepared the findings as to the injuries sustained by the victim. 27. As to the "suspicion" that the victim may have been getting his "just deserts": this conjecture, I am bound to say, I find a quite remarkable statement, unsupported as it is by any vestige of evidence. 28. This court gave consideration as to whether we should return the case to the magistrate to hear further evidence by calling the doctor who prepared the medical certificate or, alternatively, whether the doctor should be called before this court. However, we did not consider that any useful purpose would be served by following either of those courses. At a later stage, the Solicitor General intimated to this court that if the court would give an indication or affirmation of its opinion that if the facts as they originally appeared before the magistrate - and were apparently accepted by him on the record - were, in fact, correct and uncontroverted, then the sentence imposed was manifestly inadequate, then he did not seek to continue with his application for leave to review the sentence. We gave that indication and affirmation of our opinion and it was, in those circumstances, that the application for leave to review was no longer proceeded with. Representation: Sneath, S.G., Q.C. & Harte, C.C. for Applicant. (1) (1967) H.K.L.R.140 at p.143. (2) (1969) H.K.L.R.21 (1) (1967) H.K.L.R.140 (3) 20 Cr.App.R.164. |