Man Wing-wai and Others v. The Queen
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CACC000593/1981 Three appellants of whom one convicted on his own plea of simple wounding and sentenced to 2 years imprisonment. No reason to interfere with the sentence in view of his record even though he would have to be sent back, after imprisonment, to the training centre order for his previous offence by virtue of Section 5(1) of Training Centre Ordinance. The other two appellants were sentenced to 4 years imprisonment. In-take officer recommended Training Centre Order. Both younger than the other appellant. One had clear record and the other only one conviction of breach of probation order. Trial judge wrong in not accepting recommendation because not minimum period of detention could be imposed by a judge. Appeal by other two appellants allowed. Training Centre Order in substitution for the prisonment sentence.
Coram: Leonard, Li and Cons, JJ.A. Date of Judgment: 10th September, 1981. ----------------- JUDGMENT ----------------- Li, J.A.: 1. The appellants were jointly charged with another person on two counts of wounding with intent to cause grievous bodily harm. The second appellant at the commencement of the trial pleaded guilty to simple wounding. His plea was accepted by the prosecution and he was sentenced to two years imprisonment in respect of each count of simple wounding to run concurrently. The first and the third appellants pleaded not guilty. Eventually they were convicted of both counts of wounding with intent and they were sentenced to four years imprisonment each in respect of each count, the sentences to be concurrent. 2. The summary of evidence discloses that on the 7th December, 1980 the appellants together with other youths, attacked and wounded two persons, one of whom was a boy of 14 years old. It was a savage and unprovoked attack. Knives, iron bars and water pipes were used. We are not informed as to the extent of injuries suffered by the victims. However, we are told that no permanent disability of the victims result from the attack. 3. Prior to the sentence the learned trial judge called for reports of the intake officer of the detention and training centre. The first appellant was also furnished with a report by the probation officer. By leave of a single judge they now appeal against sentence. 4. The second appellant is a person who had four previous convictions, three burglary and one theft before he committed the wounding offence. He was arrested in January this year in respect of the wounding offence. He was granted bail. While he was on bail he committed a further offence of burglary, for which he was tried, convicted and was sentenced to be detained in a training centre. Upon his conviction of the wounding charges in June this year he was sentenced to two years imprisonment in addition. The learned trial judge who sentenced him for the wounding charges found that he had no other alternative way to deal with him apart from sending him to prison. Because of the provisions in section 5(1) of the Training Centre Ordinance the effect of the prison sentence is that he would have to serve his two years' imprisonment and then go back to serve another term in the training of between five months to three years. He had not advanced any valid grounds in respect of this appeal, all he asks for is to make the prison sentence and the training centre order concurrent. That is not possible in view of the provisions in section 5 of the Training Centre Ordinance. 5. He was sentenced to the training centre in May this year. He had served a month's before the sentence of imprisonment for two years was imposed. After he served his prison sentence he should return to the training centre. Of the three appellants, the second appellant was the oldest. He is eighteen years of age. Even applying the principle that was pronounced in the case of LAU Kwok-fai and others v. The Queen (1), there is no way we can see fit to interfere with the sentence. 6. We now turn to the other two appellants who have been sentenced to four years imprisonment. The learned trial judge in his reasons for sentence felt that he should not send them to the training centre or detention centre even though it was recommended by the reporting officers. He felt that it was inadequate to send them to these centres and had this to Say:
7. It appears thus the learned trial judge sentenced the first and the third appellants to imprisonment of four years because he was influenced by the fact that he was not able to specify a minimum period of detention in the training centre. 8. The indeterminate length of detention in a Training Centre is a deliberate feature of the scheme, which is aimed at rehabilitation more than punishment. It was thought that a better decision could be made by a responsible officer of the Prison Service who had had full opportunity to observe the defendant's response to the training programme than by a judge at the time of conviction. The learned District Judge may think otherwise, but expressions of persional opinion are best made in private. 9. The first appellant has two previous convictions which have been ordered by the then judge or magistrate not to be recorded. He has one conviction for breach of Probation Order. He is fifteen years old at the time of sentence. 10. The third appellant is sixteen years of age. He has a clear record. From the intake officer's report his father is a disciplinarian. Unfortunately the discipline that the father applied to him was not able to prevent his joining other undesirable elements. Nevertheless this is his first offence. 11. In respect of both, first and the third appellants, the reporting officer recommended a period of training. The probation officer recommended a period of probation for the first appellant. Be that as it may, we feel that wounding with intent, which is quite different from simple wounding of which the second appellant was convicted, is a serious offence. Having regard to their comparatively young age, that the first appellant has only one previous conviction of a breach of probation, the third appellant has a clear record, we are of the opinion that a period of training will be appropriate for these two appellants. 12. Accordingly the appeal by the first and the third appellants are allowed to the extent that the sentences of four years imprisonment will be set aside and in substitution therefor they will be sent to the training centre. The appeal by the second appellant is dismissed. Leonard, J.A.: 13. I agree. Representation: Mr. Eugene Chung (Y.K. Poon & Co.) for 1st and 3rd Appellants 2nd Appellant in person Mr. G.J. Plowman for Crown (1) Criminal Appeal No. 319 of 1979 |