R. v. Man Yat Yip and Another

CACC000675/1996

IN THE COURT OF APPEAL

1996, No. 675

(Criminal)

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Coram: Hon Mortimer, Mayo, JJ.A. and Wong J. in Court

Date of hearing: 29 May 1997

Date of judgment: 29 May 1997

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J U D G M E N T

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Mayo JA giving the judgment of the Court:

1. The applicants pleaded guilty to one count of wounding with intent. A1 was sentenced to 3 years 9 months' imprisonment and A2 to 4 years' imprisonment. They both seek leave to appeal against their sentences.

2. The facts were very simple. The victim and his girlfriend were returning home in the early hours of 20 March 1996. When they reached the entrance of the premises two men carrying beef knives rushed into the flat while a 3rd man kept watch at the entrance. The men with knives both attacked the victim and inflicted numerous serious injuries upon his person. The trial judge HH Judge Gould described the victim's injuries as follows:

"The victim's injuries were severe. On his stomach there was a 15-centimetre wound, on his chest a 6-centimetre wound, on his thigh a 6-centimetre wound, on his neck there was a 10-centimetre wound deep to the bone. There were wounds on both hands and each hand had a broken finger. The victim underwent an emergency operation in the course of which his spleen was removed. The victim was in hospital for two weeks and there has been follow-up treatment since, in the course of which one of the fingers was re-broken and re-set. The victim is still undergoing physiotherapy and the photographs make it clear that there will be scars for life."

3. The men made good their escape. A report was made to the police and the victim was taken to hospital for treatment.

4. The men left behind them the paper sheaths which had been used to cover the knives. After a forensic inspection of the knives A1's fingerprints were found on one of the sheaths and A2's palm print on the other.

5. Some 3 months later A1 was picked up in a routine inspection and subsequently arrested. He made a full cautioned statement to the police. He also provided information which led to the arrest of A2.

6. The motive given for this attack was that the applicants were commissioned to undertake the attack by another man who had informed them that the victim's girlfriend was his wife.

7. When passing sentence the judge made reference to the fact that both men had made statements to the police which provided information concerning the man who had commissioned the attack and particulars of the 3rd man who had taken part. Notwithstanding the fact that both men had expressed a willingness to give evidence in court against these parties no further criminal proceedings had been instituted at the time of sentencing.

8. In the perfected grounds of appeal reliance is placed upon ground 1 which is as follows.

The learned judge erred in principle in failing, at the time of sentencing, to take into account or give any credit to either of the Appellants for the information they had provided to the police in an attempt to bring to justice both the party who had commissioned the attack and the 3rd attacker.

9. Both men were given a full 1/3 discount for their pleas. However A1 did get a credit for a further 3 months for his earlier plea and the fact that the judge surmised that A1's plea might well have influenced A2 in entering a similar plea.

10. Mr Poll who represents these applicants places reliance on R. v. Choy Chi-tak(unreported) being Crim App 527/95 in support of his submission that the applicants were entitled to some credit for the assistance they have given the authorities.

11. In that case the applicant was given some credit for the assistance he had given to the police. A differently constituted Court of Appeal reduced the starting point of 30 years' imprisonment in a dangerous drugs case involving a very substantial quantity of dangerous drugs from 30 years to 24 and stated that the applicant was entitled to a full discount of 1/3. The court then went on to reduce the sentence by a further year to reflect the assistance which had been given.

12. We consider that a discount would normally be given in the circumstances of this. However having regard to the very serious nature of this offence we do not consider it appropriate to do so in this case and taking everything into account the sentences passed was neither wrong in principle nor manifestly excessive. In our view the starting point adopted by the judge was too low. Accordingly the applications are dismissed.

Representation:

Mr K.S. Kripas for Crown Prosecutor

Mr Michael Poll (DLA) for Applicant