Au Phung-sam and Others v. The Queen

CACC001038/1981

BETWEEN

Coram: McMullin, V.P., Li & Yang, JJ.A.

Date: 18 August 1982

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JUDGMENT

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Yang, J.A.:

1. I do not propose to deal with the submissions advanced on behalf of each of the applicants. Suffice it to say that we have considered those submissions with care. We have considered the backgrounds of the applicants as well as the letter which was addressed to the judge by the Charge de Mission of the United Nations. Taking into consideration all the circumstances of the case, we are of the view that 2½ years is the correct level of sentence for this type of offence.

2. The trial judge drew the distinction between those who were seem to have had in their possession water pipes and those who had had in their possession knives. As it happened, those who had knives were older than the rest - in that they were 40 years of age and the others were about 20 to 30. We do not think that any distinction should be drawn between those who are older and those who are younger. Whilst it would be perfectly understandable and justifiable for a distinction to be drawn between various types of very different weapons, for example, a gun and a wooden pole, too fine a distinction should not be drawn between weapons, the viciousness of which is not so markedly different, as in the case of a water pipe and a knife. Also if a distinction is to be drawn between this type of weapons, then presumably it would be necessary to draw a distinction between those who use knives and those who use bicycle chains, those who use water pipes which have not been sharpened and those who use water pipes which have been sharpened. We are of the view that the distinction made here is unnecessary and undesirable. We therefore draw no distinction between those who use knives and those who use .cater pipes.

3. For the two applicants who were found to have had in their possession knives and were sentenced to 3 years' imprisonment, we would grant leave to appeal against sentence; treat their applications as appeals and reduce their sentences from 3 to 2½ years.

4. The 6th defendant was given a 2½ years though he was unarmed. The trial judge in his Reasons for Verdict noted that this applicant was unarmed but he went on to say that he could easily have cast away a water pipe. It is not disputed that there were water pipes and bloodstains: in the vicinity but there is no evidence linking this applicant with any water pipes. We are, therefore, of the view that he should have been sentenced on the basis that he was unarmed and that he had had no connection with any weapons. A distinction therefore should be drawn between his case and that of the other applicants. On would treat his application for leave to appeal against sentence out of time as an appeal and allow the appeal to the extent that his sentence of 2½ years is reduced to 2 years.

5. Finally, whilst it is true that Hong Kong has been fortunate enough not to have had too many cases of this type amongst refugees, but if recent indications can be relied on, it would appear that the number of this type of cases is perhaps not as rare as one would at first think. In view of the seriousness of this sort of offend, we are of the view that a deterrent sentence ought to have been given in a case of this nature and, therefore the learned trial judge was correct in imposing such a sentence.

Representation:

1st and 4th Appellants in person.

Chong Kai Ming (Michael Chan & Co.) for 2nd and 6th Appellants.

Alexander Wong (Woo, Kwan, Lee 2 Lo) for 3rd Appellant.

Adrien Souyave (Y-K. Poon & Co.) for 5th Appellant.

McMahon, Crown Counsel for Crown/Respondent.