Attorney General v. Lam Kam-tai Alias Lam Kim-hung
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CACC000562/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 562 OF 1972 -----------------
Coram: Rigby, C.J., McMullin & Leonard, JJ. Date of Judgment: 9th September, 1972. ----------------- DECISION ----------------- 1. This is an application made to this court by the Attorney General, under Section 81A of the Criminal Procedure Ordinance, to review a sentence passed by a lower court on the ground that the sentence imposed was "manifestly inadequate". 2. This section, which is of a somewhat novel nature and which has no counterpart in the law of England as administered in the United Kingdom, came into operation in Hong Kong on the 14th April, 1972. We think it desirable at the earliest opportunity to state what are the principles which will guide this court in dealing with applications made under this section. 3. First and foremost, it is to be noted that for the first time in any legislation the words "manifestly excessive" and "manifestly inadequate" are to be found. To justify interfering with the sentence imposed by a lower court it is clearly not enough that the members of this court, whether individually or collectively, consider the sentence a lenient one and themselves, whether individually or collectively, would have passed a different and heavier - or lesser - sentence. Different people will inevitably take different views with regard to the appropriate punishment in any particular case. In matters of sentence opinions must necessarily vary greatly. A discretion is given by the law to the judge or magistrate who tries a case, sees the parties concerned and hears the facts presented, whether in aggravation or mitigation of sentence, and an appellate court will not, and should not, lightly interfere with the discretion rightly and properly vested in the trial court unless there are very good grounds which would justify it in so doing. 4. Mr. Stratton, who appears in these proceedings on behalf of the Attorney General, concedes that the provisions of this section are not to be approximated to, or envisaged as conferring, a general right of appeal upon the Attorney General in criminal cases and he accepts that the express use of the words "manifestly inadequate" (or "Manifestly excessive") in the section itself clearly indicate that in considering an application by the Attorney General for a review under this section this court must apply a test more stringent than that employed in appeals by or on behalf of convicted persons before it will consent to interfere, on review, with a sentence which has been passed by the lower court. We appreciate, of course, that the term "manifestly excessive" is not of novel origin and that in the United Kingdom the Court of Criminal Appeal, as it was then called, has, in the appropriate case, when it has so thought fit, invoked the principle that it would not interfere with a sentence imposed by a lower court unless such sentence was manifestly excessive in the circumstances of the case or, alternatively, wrong in principle. Nevertheless, in construing these terms "manifestly inadequate" and "manifestly excessive" for the purpose of this section, we are entirely satisfied, and the Attorney General so accepts, that they impose a much stricter test in relation to the sentence imposed by the trial court than the test that would justify an Appellate Court in interfering with a sentence on the hearing of an appeal brought by a convicted person. 5. We think an appropriate guideline for the purpose of construing and giving effect to the provisions of this section may be found in the practice and procedure as applied by the Appellate Court in South Africa in relation to criminal appeals. 6. This court is particularly impressed by the words of Schreiner, J. (as he then was) in the case of Rex. v. Reece(1). He said this:-
7. The test laid down by Schreiner, J., (as he then was) was adopted with approval by Hathorn, J.P. (Judge President) some 11 years later in the case of R. v. Zulu and Others(2) in which he said that in dealing with cases of this nature - appeals against sentence - he had found "the clearest guidance from the judgment of Schreiner, J." the test prescribed by him had been adopted and applied in those courts - indeed so much so that "it has become a commonplace for counsel for the appellant in this type of case to contend that the sentence induces a sense of shock and should therefore be reduced." It is, of course, true that the case before Schreiner, J. was an appeal against sentence on the grounds that it was excessive. But we think that the same principles should equally apply whether it be an appeal against manifest excessiveness or manifest inadequacy. Is the sentence so manifestly inadequate or so grossly excessive that it leaves one with a sense of shock or outrage? Was the punishment imposed so grossly excessive or so manifestly inadequate in the circumstances that no judge or magistrate exercising a proper judicial discretion ought to have imposed it? Is the sentence out of all proportion to the gravity of the offence? In our view, these are the principles and these are the tests which this court ought to apply in considering applications brought before it under the provisions of section 81A of the Criminal Procedure Code. Bearing these principles in mind we turn now to consider the facts of the particular case before us. 8. At about 5.15 p.m. on the 3rd July, 1972, the respondent, a youth of 17 years, was stopped and searched by a party of police officers on patrol near the Victoria Park Swimming Pool in Victoria Park. He was found to be wearing a sheath knife. He was asked to account for the possession of this knife and he said that he was carrying it for defensive purposes. He was escorted to the police station and it is said that on the way he told the police that he had something to tell them on his arrival at the police station. At the police station it is said that he freely, frankly and spontaneously disclosed the commission of five offences of robbery, all committed by him in the company of others during the months of May and June. It is pertinent to observe that, as is unfortunately so frequently the case, in two only of these instances had the persons involved thought it worthwhile making any report to the police. The apathetic attitude of the public in matters of this kind does little to assist the police in the apprehension of persons who commit offences of this nature. However, as a result of the information given by the respondent as to the time, place and circumstances in which these offences were committed, coupled with their own research into the registers maintained by them for the purposes of recording complaints made by the public, the police were able to trace the victims concerned in two out of the five cases involved. It would appear that in one case the appellant, together with two other youths, had stopped two youths outside a restaurant in Victoria Park and taken from them the small sums of money in their possession and the wrist watches they were wearing. The wrist watch the respondent was wearing at the time he was arrested was, in fact, identified by one of the complainants as the wrist watch taken from him at the time of the incident. The other wrist watch was not recovered. In the other case the respondent and four other youths, at about 7 p.m. on the 14th May, had stopped a courting couple walking in the vicinity of the Tytam Reservoir and taken from them a relatively small sum of money in their possession and the wrist watches they were wearing. Here, again, as a result of the respondent's own statement and the report made by the victims after the event had occurred the police were able to trace the victims. Unfortunately, neither the money nor the watches were recovered. 9. As regards both these cases, it is to be said that there was no suggestion that a knife or any other offensive weapon was produced nor was there any injury or physical assault complained of by the victims involved. 10. As to the three other offences disclosed solely upon the respondent's own confession and in respect of which no reports or complaints were made to the police, they involved incidents in which the respondent, with another person, had accosted different youths - in one case in the street and the other two cases at staircase entrances - and caused them to hand over small sums of money and miscellaneous articles in their possession. In each instance the respondent took the police to the location in which the incident had occurred and to the pawnbroker or other places where the property had been disposed of, and gave every possible assistance to the police not only in trying to trace the victims involved but also - except in the case of the small sums of money which had admittedly been spent - in recovering the property stolen. 11. When the case came to trial the respondent pleaded guilty to the charge of possession of an offensive weapon and to the two substantive charges preferred against him of robbery in respect of the two incidents which had been reported to the police and the victims of which had been specifically traced. In respect of the three incidents which had not been reported to the police, these were made the subject of three separate offences and the respondent, at the time of pleading guilty to the substantive charges brought, asked for these three offences to be taken into consideration by the magistrate when assessing sentence. So much for the facts of the case. 12. It would seem abundantly clear that if the respondent had not, of his own accord and initiative, confessed to the police the commission of these offences, no charges of robbery would or could have been brought against him. 13. The learned magistrate, having heard the facts, very properly adjourned the case for 14 days in order that he might have before him a report from the Probation Officer and a report from the Commissioner of Prisons as to the respondent's suitability for detention in a training centre. The magistrate ordered that the respondent be detained at a training centre pending the resumption of the hearing. On the resumed hearing the magistrate had before him both the "suitability report" from the Commissioner of Prisons and the Probation Officer's Report. In the brief "suitability report" the Commissioner of Prisons stated that the respondent was both "mentally and physically fit for detention in a training centre". However, he went on to say that:
he was of the opinion that the respondent:
14. The Probation Officer's report was a characteristically careful and detailed report setting out the whole life and surrounding of the respondent and his background and general behaviour. In the concluding paragraphs of that report, the Probation Officer, whilst expressly acknowledging the serious nature of the present offences, went on to indicate that in her view, subject always to the magistrate's own discretion and decision, it was an appropriate case for probation and suggested that the respondent be placed on probation for 18 months. It is to be said that the respondent, aged 17 years, had never been in trouble before. 15. The learned magistrate, in the exercise of his discretion, accepted the recommendation of the Probation Officer and ordered that the respondent be placed on probation for 18 months under the terms of the Probation of Offenders Ordinance. It is against that order that the Attorney General now applies for a review on the ground that the sentence was "manifestly inadequate". 16. This court is fully conscious of the prevalence of this type of offence committed by young offenders at the present time and the natural fear and anxiety felt by members of the public. Bearing these factors in mind, we take the view that in cases of this nature, unless there are very good reasons to the contrary, a custodial sentence, whether it be in a detention centre, a training centre or, in serious cases, a term of imprisonment, ought generally to be imposed. 17. Mr. Stratton has referred us to the well-known case of R. v. Ball(3) heard some years ago in the Court of Criminal Appeal in England, in the course of which that most wise and experienced judge, Hilbery, J., when commenting on the considerations that should affect a court when passing sentence, had this to say:
We would, again, repeat the last sentence:
18. Subsequent to the making of this application by the Attorney General we called for the magistrate's detailed reasons for decision. They are now before us. We think it necessary to state them in full: they are as follows:-
19. In the light of these reasons for sentence now before us we can see no grounds for interfering with the discretion as to sentence vested in the trial court. We find ourselves quite unable to say that, in all the circumstances of this case, the sentence imposed was "manifestly inadequate" and the application for review is accordingly dismissed. Representation: Stratton, P.C.C. for Applicant. Gittins, Q.C. & T. Trieu (Miss) (Patrick Chan & Co.) assigned for Respondent. (1) (1939) S.A.L.R. (T.P.D.) 242. (2) (1951) S.A.L.R. 489 at 490. (3) (1951) 35 Crim. App.R. 164. |