The Queen v. Chan Chi-wai

CAAR000017/1983

BETWEEN:

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Coram: Hon McMullin, V.-P., Li & Silke, JJ.A.

Date: 4th January 1984

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JUDGMENT

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McMullin, V.-P.:

1. This is an application for review of sentence on the part of the Attorney General.   The Respondent was convicted of an offence under s.17 of the Offences Against the Person Ordinance, the charge arose out of an occurrence on the 22nd of March 1983. On that day the victim Lee Chi-wing, a school boy of some 16 years, was returning home from school at mid-day in the company of a companion, when he was approached by three young men, one of these was the present respondent. He was forced to walk along with them for a while, until they came to Block 12 in a local resettlement estate, when he was beaten by these three young men using fists, having been taken to an upper floor of that building. Knives were produced. The preamble to this attack was an inquiry made of the victim by these persons who, it appears, wished to have certain names and addresses given to them. The attack which followed resulted from either his unwillingness or else his inability to give these names. The attack involved the use of long beef knives, each of the assailants having one such weapons. The boy broke away and ran and was further assaulted in the same way.  He received very grave injuries but, remarkably, did not become unconscious and when his assailants had run off he managed to go down to the ground floor and get help. He was then removed to hospital. He received extensive surgical treatment and was retained in hospital until July when he was discharged.  He returned thereafter for outpatient treatment. There is a slight permanent disability which consists of a stiffness in or inability fully to extend a couple of the fingers of one hand. However there were very grave injuries to some of the major muscles of the body, some of the muscles of the arms and legs being almost severed. There was a skull wound which amounted to a partial scalping and there were injuries to some of the bones of the hands. It may be said that this was an attack of the gravest character, which might well have resulted in the death of the victim.

2. The respondent was arrested on the 26th of June, but his two companions have never been arrested. He was convicted after trial and the District Judge called for the usual reports. In passing sentence, the Judge said: "With considerable hesitation, I decided to send the defendant to a detention centre because although the period of his detention there would be much shorter than that in a training centre, in my opinion, the strict discipline of the detention centre would make a deeper impression on the defendant and be more likely to act as a deterrent than the more relaxed kind of confinement in a training centre. "

3. It is to be noted that in the probation report and in the intake report, the reporting officers in each case had suggested that a period of disciplinary training would be advisable.

4. Mr. Frank Wong who appears for the Crown today asks us to say that the sentence imposed was manifestly inadequate by reference a) to the facts which I have briefly detailed; b) by reference to the nature of the information contained in the several reports; c) by reference to the scale of sentences usually imposed in cases of this kind.

5. We were referred to a number of decisions of these courts, amongst them criminal appeals 307 of 1978, 231 of 1979 and 114 of 1980. All of these were cases in which substantial terms of imprisonment had been imposed upon offenders who had been convicted of Section 17 offences.  They are not however very useful authorities in the present instance, in as much as the age of the offenders in those cases is not disclosed, and age in the present case is perhaps the single individual feature which calls for most the pressing consideration by this court.

6. At the time of the offence, this respondent was 16 years and 10 months. The case which perhaps came closest to the circumstances with which we are confronted now is Man Wing-wai, Crime. App. No. 593 of 1981. Also taken under the same section, it was a case involving three defendants, one of whom was 18 years of age, one 15 and one 16. The 18 year old pleaded guilty to simple wounding and received a sentence of 2 years which was not interfered with. All three defendants had originally been given sentences of four years.

7. The circumstances of the offence were comparable with the circumstances in the present case involving a savage and unprovoked attack carried out by a number of persons against an unarmed youth, the assailants using knives, iron bars, and other weapons. The court set aside the four year prison sentences and substituted therefor orders of detention in the Training Centre. The court noted that there was nothing before the court to show the extent of the injuries received, which seems perhaps somewhat remarkable, although there was, apparently, information that no permanent disability had resulted. The Judge in sentencing the defendants, had ventured upon the opinion that a long period of detention would be required, and since it was not possible, in imposing Training Centre orders, for the court to direct the minimal period to be so served, he thought that it was advisable to impose prison sentences instead. This approach did not recommend itself to the Court of Appeal.

8. It may be said that in the present case, unlike Man Wink-wai, we have probation reports and intake report which are not particularly favourable to the present respondent. Although there is a previous conviction, Mr. Wong for the Crown has conceded that it should not be taken into account.

9. What principally impresses the court in the present case is that we have here a very savage attack which has clearly a triad background, upon a school boy - admittedly one who had some shadowy possibility of triad affiliations himself in the past - but nevertheless an attack on a young boy, returning with a companion from school,of such a character that it is very fortunate that the victim escaped with his life. We have therefore to balance - and it is not an easy task - two quite opposed considerations in deciding what is best to be done. The first is to have regard to the personal circumstances of the respondent, and the possibility that, on a merciful view, rehabilitation would be the proper approach, if such was a real possibility; rather than subject him to full prison treatment, and the possibility that that would confirm him in a criminal career.

10. As against that we have to consider a matter of the foremost importance, and that is the public interest that this kind of activity should be visited with punishment of such a character as to bring home to all persons who are minded so to behave the realization that the court will no longer consider mere youth a sufficient barrier against the imposition of a prison sentences.

11. Eventually we have come to the view that it is the public interest which requires superior consideration in the present cases. We are satisfied that in any event a Detention Centre order was, in the circumstances of this case, quite inappropriate. No case has been cited to show that in a Section 17 case - at least of similar gravity - any such sentence has ever been imposed and we would think it unlikely that such a case existse.

12. With that said we have also come to the conclusion that the alternative which was in the mind of the District Judge, that is a Training Centre Order, is not the appropriate course in the present case. We therefore set aside the order for detention and we impose a prison sentences. We think that the appropriate sentence at first instance would have been a term of 4 years. This being a review case, we give the usual discount, and we impose a sentence of 3 years in substitution for the existing sentence.

Li, J. A.:

13. With my lord's permission, I would like to make one observation, that is speaking for myself. For future reference, when people are of similar mind as this respondent, in fixing unprovoked and severe injury and use of violence, be he a young person or adult, I would strongly recommend corporal punishment as well.

Representation:

Frank Wong for Applicant/Crown.

John Lee(Howell & Lo)for Respondent.