Lui Wai Chun Alias Chan Mei Fong and Others v. The Queen

CACC000536/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 536 OF 1971

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Coram: Huggins, Pickering and Leonard, JJ.

Date of Judgment: 26th November 1971

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JUDGMENT

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Huggins, J.:

1. This case has given us great anxiety. Each member of the Court approached it with doubts whether a sentence of detention in a Training Centre was appropriate for the manslaughter of an officer of the Prisons Department in the course of an escape from a Training Centre. Indeed, the complaint of the Appellants is not that the sentences were too severe but that they were not severe enough and they ask us to substitute long prison sentences. Applications to impose a more severe sentence are not unknown and they are sometimes regarded - and no doubt rightly regarded - as an abuse of the process of the court and are dismissed out of hand. There were, however, circumstances in the present case which required further investigation. In reply to questions from the Court the Appellants expressly disclaimed any allegation of improper treatment in the Training Centre where they have been detained since the further sentence of detention was passed upon them and they insisted that the reason behind their applications for leave to appeal was that they thought they could more easily live with their consciences if they were treated with less leniency. We were of opinion that if this were the true reason it showed that the learned Chief Justice had indeed decided upon the right sentence in spite of our original doubts. However, we thought it desirable to call for reports from a probation officer and from the Commissioner of Prisons and these have now been provided. They have been of great assistance to us.

2. The first thing to be said is that we are not satisfied that the reason advanced by the Appellants for asking to be sent to prison is the true reason. We therefore turn to a consideration of what we consider to be the most important factors governing the appropriate sentences in the case.

3. The three Appellants were, as I have said, already serving sentences of detention. They decided to escape and according to the 1st Appellant the Deceased came upon her as she was removing her Training Centre uniform. The Deceased is said not only to have scolded the 1st Appellant but also to have slapped her on the face: a struggle then developed, in which the other Appellants joined: the Deceased was tripped and then held down while her hands were tied: an attempt to gag her with a pair of socks to prevent her shouting for help was unsuccessful and in its place the 2nd Appellant used a sanitary towel which fell off as the 3rd Appellant discarded her Training Centre uniform. It was the use of this sanitary towel which led to the suffocation of the Deceased.

4. We must accept, for the purposes of the present case, that the Deceased did strike the 1st Appellant. There is no reason to believe that an attack on a Prisons Officer formed part of the escape plan and we proceed, as did the learned judge, on the basis that no harm to the officer was intended beyond what was thought by the Appellants to be necessary to enable them to get away without interruption.

5. The learned judge had the benefit of hearing evidence from the Superintendent of the Training Centre but not that of the reports which we thought it right to obtain after hearing the Appellants. The Commissioner of Prisons has indicated that had he been asked for a report he would have said that he did not consider the Appellants suitable for further training and that he is now fully satisfied that they are not suitable. The probation officer's reports are very detailed and showed that the 1st Appellant and the 3rd Appellant have not received much help from their families during their formative years, while the 2nd Appellant seems to have got into bad company and to have run away from home about three months before the offence which led to her first detention in the Training Centre.

6. Without going at length into the principles of punishment there is one element in particular which we think was not accorded the weight it deserved from the learned trial judge. Although the courts must always endeavour to take an overall view of cases which come before them and not be unduly affected by any one section of public opinion, they must bear in mind that society has, in taking from the victims of crime and their relatives the satisfaction of personal vengeance, transferred to the courts the duty of ensuring that punishments are not so lenient that the victims or relatives will be tempted to take the law into their own hands. The case of Reg. v. Mawaz Khan⁽¹⁾ gives an example of what may happen when a court is thought to have been too lenient. While not suggesting that there is any evidence that the relatives of the Deceased in the present case would feel disposed to take the law into their own hands yet we cannot but think that they, and indeed the public at large, could justifiably be uneasy at what must seem to them a sentence disproportionate to the harm done. The sentence must fit not only the offender but also the offence.

7. Not unconnected with this is the need to deter others from dangerous acts similar to those of the Appellants. The Prison Service and the Police Force do a great service to the community under difficult and sometimes dangerous conditions. We think it is the duty of the court to do nothing which may increase their difficulties and dangers by leading criminals to believe that they can use violence, of whatever degree, with the risk of only small loss to themselves.

8. We are painfully aware of the youth of these three Appellants (the 2nd Appellant is 16 years of age and the others are 17) but in our view they are not so young that any sentence other than one of imprisonment is appropriate for the crime they committed. Their youth is undoubtedly a factor to be taken into account in deciding the term which should be imposed, as also is the fact that they have already been detained for over three months pending determination of their appeal. After long deliberation we have decided that the appeals should be allowed and sentences of three years' imprisonment substituted, those sentences to run from today.

Representation:

(1) 1965 H.K.L.R. 720, 740.