Kan Chi-ping v. The Queen

CACC000933/1980

Coram: Li J.A., Silke & Power JJ.

Date of Judgment: 9th June, 1981

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JUDGMENT

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Li J.A.

1. This is an appeal against the sentence. The appeal against conviction has been abandoned and therefore dismissed. The Appellant is convicted of four charges of wounding with intent to do grievous bodily harm and one charge of assault occasioning actual bodily harm.

2. The circumstances of the wounding and the attack are fully set out in the judgment of the court below. There is no necessity to repeat them. Suffice it to say it was a very vicious attack by ten or more youths upon a group of five young persons. One of the young persons injured was a ten year old boy. The extent of the injuries suffered by each of the individuals can be said to be extremely serious. But for the grace of God, the Appellant could well have been indicted for murder.

3. The learned trial judge, when considering sentence had this to say about the Appellant!

"It is early age that inhibits me from imposing a maximum sentence of seven years that the District Court has jurisdiction to pass. A sentence of imprisonment of six to seven years is unduly long and harsh on an 18 year old youth and it is undesirable that will hamper any chance of rehabilitation he may have. But a sentence of imprisonment of three years is grossly inadequate even for a young person of 18 both as a punishment and as a deterrent because the violence used in this case clearly indicates the highest degree of callousness. It must be brought home to everyone that conduct of this kind is not be tolerated even for the shortest duration of one second."

For this reason the learned trial judge imposed an overall sentence of three years in respect of each of the wounding with intent charges. In addition, he imposed ten strokes of the cane in respect of the first charge. He had first obtained a report that the Appellant was physically fit for caning.

4. The grounds of appeal are confined to that portion of the sentence which relates to caning. Mr. Bleach, who appeared for the appellant, specifically did not argue that the sentence of three years imprisonment was in any way excessive.

5. The grounds were:

"That the sentence imposed, namely that, in addition to a sentence of 3 years imprisonment he received 10 strokes of the cane was inappropriate wrong in principle and excessive having regard to the facts:-

6. We have the greatest sympathy with and understanding of the sentiment expressed by the learned trial judge. It is with some reluctance that we vary the sentence. The reason why we vary the sentence is because way back in 1970 in the case of Au Yeung Ming v The Queen⁽¹⁾ the Full Court decided that where corporal punishment had not been imposed for a long period of time there should be a consultation within the Judiciary before its imposition be revived. In this case both counsel tell us that they are not aware of any corporal punishment being awarded in the District Court since 1976. The Crown concedes that there is nothing in the reasons for verdict to indicate the learned trial judge had consulted with the other judges before imposing this particular sentence of caning. Following the decision in Au Yeung Ming's case we feel we are obliged, with some reluctance, to set aside the sentence of caning.

7. The learned trial judge had indicated that three years imprisonment was by no means sufficient or adequate either as a punishment or as a deterrent. When the Judge had to deal with a case as serious a nature as this he had taken into account the Appellant's age and his being a first offender. Since the Appellant is appealing against the sentence this court has jurisdiction to impose a substitute sentence. This was done in the case of Lam Chi Wai - Criminal Appeal No. 820/1978. Having regard to the circumstances of the whole case we feel that a sentence of three years without the caning is certainly inadequate. For the reasons given we set aside the caning sentence of ten strokes and substitute therefore an additional year of imprisonment in respect of each of the first four charges. The sentence for the fifth charge is confirmed. All the sentences will be concurrent. The Appellant will serve a total of four years sentence.

Representation:

Mr. John Bleach (Hastings & Co.) for Appellant

Mr. Mawson for Crown

(1) in 1970 H.K.L.R. 1973