Au Yeung Ming v. The Queen
|
CACC000846/1969 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 846 OF 1969 -----------------
Coram: Full Court (Briggs, Mills-Owens and Huggins JJ.) Date of Judgment: 18 March 1970 ----------------- JUDGMENT ----------------- 1. The appellant pleaded guilty in the District Court one charge of robbery with violence and to four charges of robbery with violence and to four charges of robbery. He was sentenced to three years' imprisonment and four strokes of the cane on the first charge and to two years' imprisonment in respect of each of the four other charges. All sentences were ordered to run concurrently. He appealed against his sentences. 2. The facts of the first charge as stated by Crown Counsel to the District Judge were that the victim was attacked by the appellant and rendered unconscious. When he recovered he found that his head was bleeding: and that he had been robbed of his wrist watch. It is not stated whether a weapon was used. The stolen watch has been recovered. After he admitted this offence to the police, the appellant revealed that he had committed the other four offences. In each of those cases he admitted robbing a victim of his watch. None of those four offences were reported to the police but the stolen watch has been recovered in each case. 3. The appellant is aged 20 and his record shows that he has twice been put on probation, has served a term of detention in a Training Centre and received a sentence of nine months. His offences include one case of robbery with aggravation and one case of pickpocketing. At the time he committed these offences with which we are here concerned he was on probation. The date of the order which was for 18 months, was January 29th 1969. He had already disobeyed that Probation Order for he was sentenced to a month's imprisonment in July 1969 for the offence of loitering at night. 4. The appellant told the District Court that he was a drug addict and he committed the offences to provide himself with the funds necessary to satisfy his addiction. 5. Before dealing with this appeal the Court asked for a report from a Probation Officer, and also asked that copies of any previous report made by a Probation Officer in respect of the appellant and referring to his previous convictions be supplied. Counsel for the appellant requested that copies of both the old reports and the new report should be made available to him. 6. It appears that it has not been the practice in the past for copies of a Procation Officer's report to be made available to the defence. 7. Attention has been drawn to rule 21 of the Probation of Offenders Rules. This states that a Probation Report "shall not be made in open court or published". 8. In R. v. Chan Chi Wah [1967 HKLR 241] which was an appeal from a magistrates court, one ground of appeal was that the Magistrate had declined to allow the defending solicitor to have a copy of the Probation Officer's report. 9. In his judgment the Appeal Judge said (at p.246)
10. The position in England is governed by section 43 of the Criminal Justice Act, 1948. This section states that a copy of a probation report must be given "by the court to the offender or his counsel or solicitor". If the offender is under 17 the copy may be given to his parent or guardian. Probation Reports are not read out in open court but are to be read by counsel before addressing the Court in mitigation. (See Para. 726 Archbold 36th edition) 11. The Court considers that it is essential that the offender or his counsel or solicitor receive a copy of any report made by a Probation Officer upon him. Such a copy should be served on the offender or his legal representative by the Court at whose request a Probation Report is made. The Report must not be read out in Court nor must it be published. But it is most important that the offender and his legal representative are apprised of its contents before any plea in mitigation is made. It is of course the duty of any counsel or solicitor who is supplied with a copy of such a report to ensure that it is not published or read out in Court. 12. Such a practice does not affect the wording of rule 21 of the Probation of Offenders Rules. There is all the difference in the world between publishing a report or reading out the report in open court and acquainting the offender and his legal representative with its contents. 13. What the Appeal Judge in R. v. Chan Chi Wah was concerned with was the publication of the report. That case is not authority for preventing an offender or his legal representative from having a copy of the report. 14. The Court also asked for a report under section 4(3) of the Training Centres Ordinance in respect of the appellant. A copy of such a report should also be supplied to an offender or to his legal representative for the reasons given above. 15. For the first charge the appellant was sentenced to three years' imprisonment and to receive 4 strokes of the cane. At the time of the passing of that sentence the District Judge had no report from a medical officer whether the appellant was physically fit enough to undergo corporal punishment. Such a report should always be called for before passing a sentence of caning. Because if the offender is found to be unfit, the Court imposing sentence may well pass a sentence of a longer term of imprisonment in lieu of the sentence of caning. Accordingly in this case the Court asked for a report. The report reads "this man is physically fit". In future it would be better if the report referred to the fitness of the offender to suffer the corporal punishment specifically. 16. The Court served copies of all the above reports including copies of the Probation reports made in respect of the previous convictions of the appellant on counsel for the appellant. None of these reports was read in Court, though very properly, counsel for the appellant in his address on behalf of his client made use of the information contained therein. 17. In his submissions to the Court, counsel for the appellant pointed out that the appellant was only 19 years old: that he was a drug addict: and that he was the eldest of six children of a family which is not affluent. 18. The appellant has a wife and two children. The wife cannot be traced and the two children are being looked after by the appellant's mother. He also stressed that the appellant had co-operated with the Police in that he disclosed to them the four other robberies of which they were quite unaware. He also pointed out that he pleaded guilty to the offences, and that though violence was used in respect of the first charge, no weapon was found. 19. In particular counsel referred to the sentence of corporal punishment imposed for the first charge of robbery with violence. 20. He said that the modern theory was that the punishment of adults by corporal punishment was out of date. And in Hong Kong it was obsolescent. 21. Further he said that robbery with violence was not an uncommon offence in Hong Kong and yet a sentence of corporal punishment for such an offence was so rarely imposed that to pass such a sentence at the present time was to depart from the regular practice of the Courts which had been followed for many years. 22. The Court does not think that there is any merit in the first of these two points. The Corporal Punishment Ordinance is part of the law of Hong Kong. And to impose a sentence of corporal punishment on an adult for the offence of robbery with violence is legally permissible. Whether or not such a punishment is sociably desirable is a matter for the legislature. 23. The second point is more important. In Lavin v. R. (1967 51CAR 378) it was held that a lower court should not impose a sentence which was a major departure from the policy of the trial Court. 24. The appellant in that case was convicted of driving while under the influence of alcohol and was sentenced by the Commissioner of the Manchester Crown Court to six months' imprisonment and in addition he was disqualified for twelve months. 25. At the hearing of the appeal it was admitted that the normal sentence for such an offence in Manchester was a fine. 26. In giving the judgment of the Court of Appeal the Lord Chief Justice said this:-
The same principle lies behind the judgment of the Full Court in Tam Hon Ho v. R. 1967 HKLR 26. 27. As is said above robbery with violence is not an uncommon crime in Hong Kong. And it is a crime which is increasing, particularly among young offenders. The seriousness of the offence itself depends upon the type and amount of violence used and the age and sex of the victim as well as many other factors. The facts of the present case though they show that considerable violence was used, are not exceptional. Since January 1966 only two sentences of corporal punishment have been inflicted on adult offenders: one was for the offence of larceny from a person, the other was for a very serious case of robbery with violence. To pass such a sentence in a case of this nature is a departure from the usual practice and policy of the courts. And such a departure should not be made without consultation within the Judiciary. 28. In these circumstances the Court considered that the sentence of caning imposed for the first offence should be set aside. 29. The four offences of robbery simpliciter came to light for the first time as a result of the confession of the appellant who was already charged with the first and more serious offence of robbery with violence. It would perhaps have been more appropriate if such charges had not been laid and that they had been taken into consideration when the plea of guilty, to the first charge was made. (See Chan Sik Wan v. R. 1968 HKLR 670). 30. Although the facts of the first charge disclose a serious offence, it is an offence which may be described as a run of the mill offence. The Court thought that apart from the sentence. of caning a period of three years' imprisonment was excessive in the particular circumstances of this particular case. 31. The Court varied the sentence on the first charge to one of 2 years' imprisonment to run concurrently with the sentences of 2 years' imprisonment imposed on charges 2 - 5. The Court ordered that the time spent in prison pending the appeal should count towards the sentence.
Representation: Sanguinetti (David Burgin & Co. for Appellant. Corcoran, S.C.C. for Respondent. Oral judgment reduced into writing. |