Attorney General v. Au Chi Tak

IN THE COURT OF APPEAL

Application for Review
1986, No. 20

BETWEEN

Coram : Hon. Kempster, J.A., O'Connor & Penlington, JJ.

Date of Hearing : 21st May 1987

Date of Judgment : 21st May 1987

____________________

JUDGEMENT

____________________

Kempster, J.A.:

1. Pursuant to leave and the terms of Section 81A of the Criminal Procedure Ordinance the Attorney General invites this Court to review the sentence of 8 years' imprisonment passed upon Au Chi Tak on 24th September 1986 by Deputy High Court Judge Leong following his conviction, on the verdict of a jury on the 10th of that month, of throwing corrosive fluid into the face of a young woman with intent. It is contended that the sentence in question was both wrong in principle and manifestly inadequate.

2. The circumstances and nature of the offence we have just outlined in the context of Au's application for leave .to appeal against conviction. There seemed to be six other material factors which we should take into account in considering the application.

3. The first is that the offence is one which carries a maximum penalty of life imprisonment. The second, that the Respondent was aged some 25 years at the time of the offence, unmarried, in employment and of previous good character. The third factor is that the very act of throwing corrosive fluid is calculated in virtually every instance to inflict appalling injury and the fourth that the victim has, in fact, been disfigured for life by a premeditated act of revenge for terminating a previously close relationship with the Respondent in favour of another man. It would not, perhaps, be a kindness to the victim for us to recount the degree of injury which she has sustained or the really unhappy prospects to which she has to look forward for the rest of her life. This is not a claim for damages for personal injury. Nonetheless, we must confess it is not easy for us to put ourselves into the frame of mind of a man willing to inflict such cruelty.

4. The fifth material factor which we have to take into account is that no discount falls to be made for a plea of guilty. Indeed, having regard to the terms of the Respondent’s grounds of appeal against sentence, again referred to earlier this morning, there is no sign of any remorse. The sixth factor is the irrelevance of any remission which a prisoner may earn while detained by the Correctional Services Department.

5. The foregoing factors are taken into account in comparing this case with others and their related sentences in order to arrive at the proper sentence to mark the gravity of the particular offence.

6. We have been referred to a number of previous cases of this nature and it is, perhaps, trite to say that each has to be considered on its own facts. In the present instance we are satisfied that a sentence of 15 years would by no means have been too long.

7. When it falls to the Court to state that it is satisfied that the conditions set out in Section 81B of the Criminal Procedure Ordinance are satisfied the full sentence thought appropriate is not imposed and some lesser sentence is substituted; this being, it is thought, a somewhat unusual jurisdiction. But in the present instance we shall not make as substantial a discount as ordinarily we would have done having regard to the fact that until, perhaps, an hour ago the Respondent was contending that his sentence was too long in circumstances where we might well have increased it without discount.

8. In the event we allow the Attorney General's application, quash the sentence of 8 years' imprisonment and substitute one of 13 years.

A.P. Duckett, Q.C. & Selwyn Au for Applicant.

W. Howard, Q.C. & Raymond Yu (William Au & Co.) for Respondent