Chan Kin-wah and Others v. The Queen

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Coram: Huggins and Pickering, JJ.A. and McMullin, J.

Date of Judgment: 26 April 1979

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JUDGMENT

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Huggins, J.A.:

1. Counsel appearing for these Appellants has confined his argument upon the appeals against sentence to those parts of the sentences which involved corporal punishment. Although he submits that the orders for corporal punishment were inappropriate in each case, he recognized that the position of the 1st and 2nd Appellants on the one hand could be distinguished from that of the 3rd and 4th Appellants on the other. That was because the orders were made against the 1st and 2nd Appellants in respect of the offence of assault with intent to rob charged in Charge 2, whereas the orders made against the 3rd and 4th Appellants were in respect of the offence of robbery charged in Charges 5 and 6 respectively. The two robberies were serious enough in all conscience, but the weapons carried were serious enough in all conscience, but the weapons carried were not used to inflict injuries upon the victims. In the first (Charge 5), three men entered a residence in the middle of the night, threatened the occupants with a long knife, tied up three of them and covered the head of the father of the family. They ransacked the flat and stole a substantial amount of property. The circumstances of the second robbery (Charge 6) were similar, except that the offence was committed at 6.45 in the evening. The evidence on Charge 2 was that the victim, a young woman, was attacked as she came out of the lift near her home. One man, who held a knife, grabbed her neck and the other put his arms round her body. She shouted for help and was thereupon stabbed in the stomach, receiving a wound which required two stitches and led to her being detained in hospital for four days. There was no medical evidence before the court.

2. Counsel relied upon the decision of this court in Lam Chi-wai v. Reg. Cr. App. 1978 No. 820, where we said:

"We are far from saying that a sentence of corporal punishment should never be imposed in addition to a substantial term of imprisonment, but we do say that it should not be so imposed unless there are circumstances of special aggravation, for example violence indicating a high degree of callousness or where long terms of imprisonment on a particular defendant have proved ineffective: its imposition should be the exception and not the rule."

It is submitted that here there were no circumstances of special aggravation. As far as the robberies are concerned we are constrained to agree. We have said that, where for such offences sentences in the region of six years' imprisonment have been imposed, this court is unlikely to interfere. However, the principle in Lam Chi-wai v Reg. must also apply and we think that a sentence of imprisonment is sufficient. For this reason we allow the appeals of the 3rd and 4th Appellants and set aside the orders of corporal punishment made against them.

3. The offence of the 1st and 2nd Appellants was very different. Here the knife carried by the would-be robbers was used to stab a woman who had already been pinioned but who nevertheless had the courage to summon assistance. Where weapons carried by criminals are actually used in such a manner, we think, there are circumstances of special aggravation which permit a court, in the exercise of its discretion, to impose corporal punishment in addition to a substantial term of imprisonment. The learned judge here, in the exercise of his discretion, thought that an order of corporal punishment was appropriate.

4. As was said in Lai Kin-man v Reg. Cr. App. 1970 No. 545,

"it is undesirable that any sentence of corporal punishment should be imposed until a judge or magistrate has obtained a medical certificate of the convicted person's fitness to receive corporal punishment.",

and we note that no medical certificate was obtained here. It is not necessary for us to obtain such a certificate before disposing of the appeal because we would not be disposed to alter the term of imprisonment in any event and the sentence of corporal punishment will not be carried out if there Appellants are unfit to receive it.

5. The orders made by the learned District Judge were for twelve strokes and fourteen strokes. We do not think that such severity is called for here and we allow the appeals of the 1st and 2nd Appellants to the extent only that the number of strokes is reduced to six in each case.

26th April 1979.