The Queen v. Yeung Kam-wah (D1) and Another

CAAR000005/1986

IN THE COURT OF APPEAL

BETWEEN

Coram: Hon. Li, V.-P., Silke, J.A. & Garcia, J.

Date of Hearing: 27th May 1986

Date of Judgment: 27th May 1986

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JUDGMENT

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Li, V.-P.:

1. This is an application for review of sentence. The two Respondents were originally charged before the District Court with causing grievous bodily harm with intent to do grievous bodily harm. In the event the trial Judge convicted the Respondents of wounding with intent to do grievous bodily harm - an offence against Section 17 of the Offences Against the Persons Ordinance.

2. The facts as disclosed in the prosecution evidence were that around 8:55 pm on 11th October last year a district board member Mr. Ng Ming-yum on leaving the District Board office was accosted by a group of 4 Chinese males who attacked him. Among his assailants were the two respondents and the Judge found that the 2nd Respondent was holding an object that looked like a water pipe during the attack. Indiscriminate blows were struck on Mr. Ng's head and body, as a result of which he suffered some superficial lacerations and bruises to the eye-lids, bruises on the shoulder and knee, and abrasions to his elbow, chest and back. He was hospitalised for some seven days.

3. The Judge found as a fact that it was a planned attack and that the two Respondents were recruited as paid assailants. He also found that in fact the second Respondent had a water pipe in his hand. Prior to passing sentence on the Respondents the Judge called for a Probation Officer's reports as well as reports from the Intake Officer of the Correctional Services Department.

4. These reports were fairly favourable to both Respondents. They disclose that both Respondents had a steady family background, clear records for the purposes of sentencing and that they were respectively 18 and 19 years old when the offence was committed.

5. It is unnecessary for us to go through the details of these reports. Suffice it to say that the Judge, as we have, had read the reports and gave them due consideration. As I said the reports are fairly favourable, particularly so in the case of the second Respondent whose employer stated that he was a responsible employee and got on well with his co-workers. I should add that in the reports both Respondents denied they were ever involved in this offence.

6. In view of the circumstances the Probation Officers were of the view that the Respondents were not suitable cases for probation - principally because of the seriousness of the offence committed. The Commissioner for Correctional Services Department, acting on the report of the Intake Officer, indicated that both Respondents were suitable for the Detention Centre as well as the Training Centre. It was on this basis that the Judge made an order for Detention Centre. In doing so, he said that, in particular, their clear records and ages saved both Respondents from prison sentences. The Judge said that:

"I considered, however, that the nature of their acts and the offence for which they were convicted called for loss of their liberty and having in mind the reports that I had prior to sentencing I was of the mind that the best way of dealing with both of them was to send them to the Detention Centre and so I made orders accordingly."

7. The Judge took into consideration that although the victim was detained in hospital for 7 cleat days, the injuries he received did not seem to justify such a period of hospitalization and he thought it might have been for some other reason. He further took into consideration the clear record of the Respondents, their age and their family background.

8. Learned Counsel for the Crown submitted that an offence of this nature normally merits about 3 years imprisonments; that is having regard to the nature of the offence and the injuries sustained by the victim. Learned Counsel for the Respondents does not challenge this contention. Counsel for the Applicant contends that the sentence is manifestly inadequate, and therefore wrong in principle.

9. On the other hand, Counsel for the Respondent argues that although the sentences might have been on the lenient side the Judge had nevertheless taken into consideration all relevant matters and did not take into account any irrelevant matters. Thus the sentences could not be said to have been wrong in principle, nor could it be said to be manifestly inadequate. He urged this Court not to interfere with the sentences.

10. We have considered the facts in this case. It was an attack by a group of persons. The Respondents were paid to attack. They knew that the victim was a District Board member. They were armed with water pipes. It was a sustained attack until the victim ran away to a shelter of safety. We are not suggesting that any particular class of persons, other than those who are specified by law, should require special protection. We feel that this type of offence is serious. We agree with the trial Judge that the clear record and their ages save the Respondents from direct prison sentences. But the sentence must reflect the seriousness of the offence.

11. Section 4 of the Detention Centre Ordinance provides:

"Where a person who is apparently a young offender is found guilty of a relevant offence the court may if it is of the opinion that in the circumstances of the case and having regard to his character and previous conduct it is in his interest and the public interest that he should undergo a period of detention in a detention centre, in lieu of imposing any other sentence, make a detention order against him."

12. This form of sentence is an alternative to a prison term having regard to the interests of the offender as well as the interest of the public. Counsel for the Crown suggested that the learned Judge, in making the order, placed undue weight on the interest of the Respondents rather than on the public interest. There is some force in that argument. Had he imposed a suitable term of imprisonment this Court would not have been inclined to interfere. However, we take into consideration the provisions of Section 4 of Training Centre Ordinance which reads:

"Where a person is convicted of an offence punishable with imprisonment, then if on the day of his conviction he is in the opinion of the Court not less than 14 but under 21 years of age, and the Court is satisfied that it is in the interest of the community and that having regard to his character and previous conduct, and to the circumstances of the offence, it is expedient for his reformation and for the prevention of crime that he should undergo a period of training in a training centre, the Court may, in lieu of any other sentence pass a sentence of detention in a training centre."

13. We find that, difficult as it is, we do have to perform a balancing act to protect the public interest. We have to pass a sentence that reflects the seriousness of the offence with the hope to reform the offender. In the circumstances a training centre order is preferable to a detention order. The Application for Review is therefore granted. The Detention Order is revoked and substituted therefore is a Training Centre Order.

Representation:

Mr. A. Hodge for Applicant/Crown

Mr. Kurnar Ramanathan (So & Karbhari) for both Respondents