Lai Kin-man and Others v. The Queen

CACC000545A/1970

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.545 OF 1970

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Coram: Mills-Owens, Huggins and McMullin, JJ.

Date of Judgment: 11th January, 1971.

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JUDGMENT

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1. We adjourned consideration of the second appellant's appeal against the sentences imposed in respect of Counts 2 and 3 because we were of the opinion that it was wrong to dispose of the appeal until we had a medical certificate of the appellant's fitness to receive corporal punishment. Such a certificate has now been produced to us.

2. The sentences were of 4 years' imprisonment concurrent on each of the two counts but they were to be consecutive to the term of 3 years' imprisonment imposed on Count 1. In addition, upon Count 3 there was an order for six strokes of the cane (or a further six months' imprisonment if the appellant were found to be unfit).

3. We think the judge rightly passed consecutive sentences in respect of these two counts. Counsel has argued that the offences were unpremeditated, being directed to offecting the escape of the appellant and another after one of them had been shot. Counsel submitted, therefore, that to pass consecutive sentences which totalled, with that on Count 1, 7 years' imprisonment plus six strokes of the cane or an additional term of imprisonment in lieu there of greatly exceeded the requirements of justice: he pointed out that 8 years' imprisonment had been given for an armed robbery on a bank in another case which was before the Court on the day that this appellant was last before us. At one stage one member of the Court thought there might be some substance in this contention because the view has been expressed that it is undesirable as a matter of penal practice to combine a long term of imprisonment with corporal punishment.

4. We have therefore considered first the order of caning. While we think that attacks on police officers are to be strongly discouraged we nevertheless accept that in the present case the evidence points to the probability that the attack on the policeman and the taking of his gun were not initially premeditated but were something done on the spur of the moment for the purpose of escape. That being so we might not have thought a sentence of caning was appropriate had it not been that the second appellant went on to assault the constable to an extent which could not be attributed merely to an intention to escape. In the event we do not feel justified in interfering with the sentence of corporal punishment.

5. As to the terms of imprisonment, upon reflection we are now satisfied that considerations of penal practice do not require us to interfere with what in all other respects were well merited sentences. This was a vicious attack upon a policeman and the public interest demands severe punishment.

6. The applications of the second appellant for leave to appeal against his sentences on Counts 2 and 3 are dismissed but we order that the period from the last hearing on 28th December 1970 until today count towards the sentences.

Representation:

A. Zimmern for Appellant.

Evans for Respondent.