Lo Yin Ho and Others v. The Queen

CACC000402/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 402 OF 1971

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Coram: Huggins, Pickering and Leonard, JJ.

Date of Judgment: 26th October, 1971.

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JUDGMENT

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Huggins, J.:

1. Before the District Judge four defendants were charged with wounding with intent to do grievous bodily harm. No evidence was offered against the 1st Defendant: the present Appellants are the 2nd, 3rd and 4th Defendants. The 2nd Defendant appeals against his conviction and the other two, who pleaded guilty, appeal against their sentences. I propose to deal with the appeal of the 1st Appellant and I shall ask Pickering, J. to give judgment in relation to the sentences against the 2nd and 3rd Appellants.

2. This is a most unfortunate case because an exhibit, which was produced in the court below has since been mislaid - and it was a most important piece of evidence. We adjourned when the case first came before us in order that a search might be made but the exhibit cannot be found.

3. The case for the Crown was that the victim and three other boys had been to a bowling alley. When they left, the victim was some distance ahead of the others. The victim said that suddenly the other three rushed past him, shouting to him to run. He ran but he was overtaken by three youths who proceeded to strike him with iron rulers. They were shortly afterwards joined by another, who also assaulted him. He said that one of the assailants had a knife but he was unable to identify any of his attackers. He suffered very severe injuries - a 3-inch laceration on the left side of his skull; a 3-inch cut-wound and a 1-inch cut wound on the left side of the back of the chest wall, beneath the arm-pit; the end of his right little finger was crushed and the finger nail was half detached; there were five cut-wounds on his right leg - one of them 2 inches long over the upper part of the right leg just below the knee; perhaps the most serious was a deep cut 3 inches long over the lower part of the right leg, cutting four tendons, and there was a deep cut about 3 inches long over the inner aspect of the right foot.

4. The learned judge came to the conclusion, and we think rightly, that this was a deliberate attack by a number of youths with intent to maim this boy. The 1st Appellant denied that he was involved in an attack upon the victim, although he admits that he was at the scene and was seen to run away by the police who came there at the time. The evidence of the police was that he was chased for some 4 1/2 minutes. However, his story is that he met the three youths as he was walking along, that he appeared to be blocking their way and that they attacked him. It was for that reason that he ran away. The issue therefore for the learned judge was whether this Appellant was the attacker or was the attacked. In rejecting the evidence - the unsworn evidence - of the 1st Appellant the learned judge placed great weight on the missing exhibit. It was a cardigan which was taken from the 1st Appellant. The police officer who arrested him said that there was wet blood on the cardigan. The forensic pathologist who was called to give evidence said that he found on the sleeve of the cardigan blood which was of a group not that of the 1st Appellant and which may well have come from the victim. Unfortunately the doctor was not asked any question about blood on other parts of the garment. In his judgment the learned judge referred to there being a round blob of blood on the front of the cardigan and it was this which led him to reject the unsworn statement of the 1st Appellant. Whether he would still have rejected that unsworn statement in the absence of what he took to be a blob of blood on the cardigan we do not know. Without seeing the missing cardigan, and possibly hearing further evidence in respect of it from the forensic pathologist, we are unable to satisfy ourselves that this blob was in fact blood. The absence of any reference to such a stain in the evidence of the pathologist inevitably raises a doubt in our minds.

5. Before us the Appellant has continued to assert his innocence. Whatever our own view on the evidence may be, we think that it would be unsafe to allow this conviction to stand. Counsel for the Crown has very fairly said that he feels unable in the circumstances to support the conviction. Therefore the conviction of the 1st Appellant will be quashed and he will be discharged in respect of this offence but of none other. As I said, I will now ask Pickering, J. to deliver the judgment of the Court as to the sentences on the other two Appellants.

Pickering, J.:

6. We have given anxious consideration to the appeals against sentence lodged by the 2nd and 3rd appellants and have come to the conclusion that the sentences of detention in a training centre, imposed upon them, were far too lenient. These youths quite deliberately maimed another human being and they now have the temerity to appeal against the over-lenient sentences imposed upon them - the 2nd Appellant on the ground that he wishes to go to Taiwan to study and thereafter return to Hong Kong when he will be a model citizen; the 3rd Appellant puts forward the proposition that anybody can make a mistake and is thereafter entitled to a chance. We can only say that deliberate maiming can hardly be regarded as a mistake.

7. The fact is that this was a vicious, brutal and premeditated assault and detention in a training centre is not society's appropriate answer to it. Taking fully into account that you have both been in a training centre for almost five months under the sentences imposed upon you, you will each go to prison for a period of two years, such sentences to commence from today.

8. This Court serves warning upon you, your confederates and upon all the young thugs in Hong Kong disposed to attack others, whether with knives, blunt instruments or guns, that this society and this court have had their fill of such tactics and that hereafter such behaviour will lead to condign punishment so that members of the public may again walk the streets with confidence by day or by night as they did only ten short years ago.

9. The sentences of detention in a training centre imposed upon these two appellants were no doubt a by-product of s.109A(1) of the Criminal Procedure Ordinance which provides that no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate; the section goes on to require the court to obtain and consider information about the circumstances and to take into account any information before the court which is relevant to the character of such person and his physical and mental condition.

10. Until recently the effect of the section was that offenders under the age of 21 were very rarely sent to prison.

11. Earlier this year, however, it was provided that the section should not apply to a person convicted of any offence declared to be "an excepted offence" by the Third Schedule to the Ordinance and the Third Schedule contained a list of offences which included many offences of violence. It is, therefore, obviously the policy of the Legislature, which should be reflected in the decisions of the Courts, that in proper cases young offenders convicted of the excepted offences should be sent to prison.

12. It has been the observation of this court that judges and magistrates have begun to avail themselves of the greater degree of flexibility in sentencing implicit in this fairly recent amendment to the law and, in proper cases, sentences of imprisonment upon youths under the age of 21 convicted of offences of violence, will receive the support of this court.

13. If it be that judges and magistrates find themselves disposed so to adapt their sentences, then it were well that we also serve notice upon the Prisons Department that it may have to brace itself for a relative depopulation of its training centres and a comparative increase in prison population. This, at any rate, until the detention centres, agreed to in principle by the Government and soon, we hope, to emerge as realities, become efficient entities.

14. We are far from saying that the learned judge in this case was in any way to blame for a too lenient sentence. He had been conditioned to think in terms of training centres over the past four years by the very largely unsuccessful s.109A(1). Nor do we say that s.109A(1) was wholly to blame for the vastly disturbing increase of violent crime over the past few years, for the population explosion, the greater awareness of the have-nots, and the increasing affluence of the already affluent section of our society have all, no doubt, been factors in the increase of lawlessness in recent years. But for the past four years s.109A(1) in its old form has, like some eminence grise, played an important part in that increase and has unquestionably led to a feeling amongst the young thugs and would-be thugs in our midst that nothing very salutary was likely to happen to them.

15. Section 109A(1), in its old form, has, however, fortunately, though belatedly, had its teeth largely drawn by the amendment made in February of this year. And whilst the sentence to be imposed in any particular case is rightly and necessarily within the discretion of the trial judge or magistrate, it may be well that young men under the age of 21 accustomed to, or tempted to crimes of violence, should be made aware that the courts are no longer inhibited from inflicting severe punishment upon them and that sentences of detention in a training centre, where considered inadequate by this Court, may well be set aside and substituted by sentences of imprisonment.

26th October, 1971.

Representation:

Appellants in person.

Duckett. S.C.C. for Respondent.