Attorney General v. Ip Chi Kin
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(Judgment delivered by President) IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) APPLICATION FOR REVIEW NO. 7 OF 1972 ____________________ BETWEEN:
____________________ Coram: Rigby, C.J., McMullin & Leonard, JJ. Date: 30th 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 in the Magistrates Court on the ground that that sentence, in the words of the statute, was “manifestly inadequate”. 2. The respondent, a youth aged 18, was jointly charged together with another youth, aged 17, with robbery. Both youths pleaded guilty to the substantive charge preferred against them and they further asked for two other offences of a similar nature to be taken into consideration. All three offences were committed on the 1st, 3rd and 4th July respectively. The facts may be briefly stated. 3. Shortly after midnight on the 3rd July, a middle-aged female was walking home alone when she was accosted in the road by the respondent and another Chinese male. At the hearing, after the pleas of guilty had been accepted, the Crown alleged that one of them – not the present respondent but the other youth – grabbed her from behind and by the neck and the present respondent threatened her with a knife and both youths demanded her handbag. The present respondent denied possession of a knife and the other youth denied the use of any force but the learned magistrate heard no evidence and made no finding as to whether either a knife or any force had been used. For reasons which we will later explain, we accept that neither a knife nor violence was in fact used. However, under pressure the victim handed over her handbag which contained $100, her wrist watch and miscellaneous articles. The youths then went off with her handbag and its contents. The victim later reported the incident to the police station. Sixteen days later, on the 19th July, a police party, acting on information received, raided an apartment house on Hong Kong Island, arrested both these youths and took them back to the Bay View Police Station for inquiries. Under caution, both accused admitted the commission of this offence on the 3rd July and, indeed, assisted the police in the recovery of the stolen property, the contents of the handbag. At an identification parade held the following day, the female complainant identified both accused as her assailants on the early morning of the 3rd July. This offence was the subject of the substantive charge preferred against both accused. We feel compelled to assume for the purposes of this application that neither a knife nor physical force was used. Before us, Mr. Stratton for the Crown, indicated that it was no longer the case for the Crown that the respondent was armed with a knife at the time of the robbery but maintained the Crown’s contention that force was used on the person of the victim. This contention had been denied in the Court below; no evidence was called on the question and therefore no finding on it was made by the learned magistrate. On applications of this nature it is not open to us to remit the matter to the learned magistrate so that he may hear evidence on such a question and make a finding of fact, as we could do on an appeal under the Magistrates Ordinance. Our jurisdiction is limited by Section 81B of the Criminal Procedure Ordinance to quashing the sentence and passing such other sentence as we think ought to have been passed, or to refusing to alter the sentence. Admittedly, we may also exercise any of the powers conferred by Section 81(9). Under that sub-section we could order the examination of witnesses and allow the admission of any depositions that might be so taken as evidence before us. That sub-section contains a proviso that in no case shall any sentence be increased by reason of or in consideration of any evidence that was not given at the trial. In these circumstances, we consider that the only fair assumption we can make is that which we have mentioned. 4. At the police station both accused also admitted committing two other robberies of a similar nature carried out on the 1st and 4th July respectively. In the one instance, the victim was a Chinese male and, in the other, a female. In the one instance a wrist watch was taken in and in the other a handbag containing $25, a cigarette lighter and other miscellaneous articles. Both accused fully co-operated with the police and the stolen watch and cigarette lighter were both recovered. In neither instance had the victim thought fit to make any report to the police and both the watch and cigarette lighter still remain unclaimed. These were the two offences which both accused admitted and asked to be taken into consideration. It is pertinent to observe that neither offence would have come to light had it not been for the free and voluntary confessions of the offenders themselves, and there is no suggestion on the record that either offence was accompanied by any violence. 5. Before the magistrate, the respondent also admitted one previous conviction of assault occasioning bodily harm in respect of which, on the 23rd August, 1971, he was fined $200 and ordered to pay $100 compensation. 6. Mr. Fairbairn, (a solicitor) appeared on behalf of the respondent at the proceedings before the magistrate. It is apparent from the record that Mr. Fairbairn asked for his plea in mitigation to be heard by the magistrate in camera. The magistrate acceded to that application. We are informed by Mr. Charles Ching, who now appears as counsel for the respondent, that the reason for the plea in mitigation being taken in Chambers was that there was an additional charge against the respondent of possession of dangerous drugs – a charge to which he pleaded guilty – but that it was the respondent’s contention that he was holding these drugs for an influential member of a gang or trial society, that that member was present in court, and that for reasons of self-protection the respondent was too frightened to put forward, in open court, his explanation for possession of dangerous drugs. We are not particularly impressed by that explanation. But it would seem apparent from the record that not only was the plea in mitigation heard in camera but the sentence or order made by the magistrate at the conclusion of the proceedings was also made in camera. We are in no doubt that it was irregular for the plea in mitigation to be taken in camera and still more so for the sentence or order to have been made in camera. No point is taken before us either by the Crown or by the respondent as to this irregularity nor has it been suggested that it rendered the proceedings a nullity. 7. Turning then to the plea in mitigation which was put forward before the magistrate. The respondent is the youngest of a family of seven children – six sons and one daughter. The father was, and is, and eminently respectable and relatively wealthy self-made businessman. However, he has not confined his interests solely to making money but has taken an active interest in community and social welfare, being a prominent member in the Scout Movement and an officer in the Civil Aid Services. The family suffered a tragic loss on Christmas Day when the only daughter died of an apparently rare and incurable disease. The parents had not been able to devote as much time as they would have wished to the younger members of the family and, as a result, the respondent had fallen into evil company. The father has business interests and investments in Australia; one son was already a naturalized Australian and working in Australia in a restaurant of which his father was a partner; that it was certainly the father’s intention to apply to the Australian Immigration authorities for an immigrant visa for the respondent so that he also might work in his father’s restaurant in Australia. On these considerations put before him the learned magistrate, in the exercise of his discretion as to sentence, without recording a conviction, made an order under section 36(1)(b) of the Magistrates Ordinance discharging the respondent conditional upon him entering into a recognizance in the sum of $400 to be of good behaviour and to appear for conviction and sentence any time if called upon within the period of the next two years. The actual record of the magistrate reads:–
8. It is against that order that the Attorney General now applies to this court on the ground that the sentence imposed – which does, of course, include the order made – was manifestly inadequate. In the case of the Attorney General v. Lam Kam-tai([1]), this court laid down the principles which should guide it in considering applications of this nature. In that case it was expressly accepted by Mr. Stratton, appearing on behalf of the Attorney general, that section 81A of the Criminal Procedure Ordinance was not to be approximated to, or envisaged as, conferring a general right of appeal on the Attorney General against the alleged inadequacy of a sentence imposed by a trial court, and that the test to be applied in considering applications under this section was very much more stringent than the ordinary test applied by an appellate court in considering an appeal against sentence. The words “manifestly inadequate” were to be given their full meaning and the test which this court then applied was that it would not interfere with a sentence unless that sentence – imposed by the trial court – was so manifestly inadequate (or so manifestly excessive) as to leave to the appellate court with a sense of shock or outrage at the sentence so passed. 19. This court has said before on more than one occasion that it is fully conscious of the prevalence of this type of offence committed by young offenders, and 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 or training centre or – in particularly bad cases where the young offender has a past criminal record – a term of imprisonment, ought generally to be imposed. In this instance, we think it probable that any one of the members of this court, whether individually or collectively, would have made a custodial order – in fact a detention centre order. But that is not to say that the order made by the magistrate, on the considerations placed before him, was manifestly inadequate or that he improperly exercised the discretion as to sentence expressly conferred on him by section 36 of the Magistrates Ordinance. 10. In this court, Mr. Charles Ching, counsel for the respondent, has elaborated upon the efforts that are still being made by the respondent’s father to enable the respondent to emigrate to Australia and the arrangements being made to look after him on his anticipated arrival there. We see no reason whatsoever to doubt the bona fides of the father as to those efforts being made. Indeed, Mr. Ching has said that the father is fully prepared to make provision to send the youth out of the Colony, and keep him out of the Colony, until arrangements in respect of his emigration have been finalised. We do, of course, fully appreciate that the eventual success of these arrangements must necessarily depend upon the Australian Immigration authorities, but in view of the family’s connections with Australia it would seem not unreasonable to believe such plans will stand a relatively good prospect of success. 11. We have been in some doubt as to whether the intention of the respondent’s parents to send him to Australia was a matter which the learned magistrate was entitled to consider in deciding to make use of section 36 of the Magistrates Ordinance. The relevant wording of this section is as follows:–
12. It is clear that the factor most strongly influencing the learned magistrate in the exercise of his statutory discretion was the intention of the respondent’s father to send him to Australia and the question whether this was a factor which was envisaged by section 36 so that he was entitled to take it into account is one which has given us some anxiety. The operative factors in the section are stated as “character, antecedents, age, health or mental condition”. However, the section clearly intends that the magistrate should have regard to the material factors affecting the background of the offender and giving the section “such fair, large and liberal construction as will best ensure the attainment of the object” (of the section) “according to its true intent, meaning and spirit” [as we are enjoined to do by section 19 of the Interpretation Ordinance (Cap.1)] we take the view that he was entitled when considering the exercise of his statutory discretion, to take into account what the future holds out for the respondent as readily as he may take into account what his antecedents are. 13. In the light of these factors, can it fairly and properly be said that the order made by the magistrate was unreasonable and that the sentence imposed by him was manifestly inadequate? With some hesitation we have come to the conclusion that this question must be answered in the negative. The magistrate took the view that this 18 year old youth had reached a vitally important point in his life when he had to decide – and the magistrate was there to help him to decide – whether he was going to embark upon a new life in an entirely different sphere, isolated from his evil associates of the past and with the help and assistance of other members of his family to guide him, or to remain in the Colony with the attendant risks of continuing to be influenced by, and associating with, those who had contributed to his downfall in the past. Having regard to the prevalence of robberies by young hooligans in the Colony at present, it is often very difficult to balance the interests of the community against those of the individual; we are not and cannot be unmindful of the necessity of deterring the young from the crime of robbery and, perhaps more important, of reassuring the public of our intention so to do, but in the last analysis if there are bona fide grounds for believing that by the course to be adopted an offender may be deterred from the commission of further offences and given an effective opportunity to mend his ways and lead an honest life, there is much to be said for the contention that the interests of the community are best served by such a course being taken. It is a course – often described as “a calculated risk” – not only frequently taken by trial judges in the United Kingdom, but also by experienced judges sitting in the Court of Criminal Appeal. As Hilbery, J. put it in the case of R. v. Ball([2]):–
14. For these reasons we are satisfied that whilst the members of this court might well have taken a different course in this case there are no sufficient grounds upon which we can properly say that the sentence imposed by the magistrate was, in the words of the section itself, “manifestly inadequate.” 15. The application is accordingly dismissed. 16. Finally we would remark that we fully appreciate that many youths, with less opportunities in life than those with which the respondent has been endowed, have received custodial sentences for similar offences. To those who may somewhat cynically consider that this case is an example of there being one law for the rich and another for the poor our reply must be that that may be so and a reiteration of our conviction that it is as much for the public good as it is for the ultimate good of this respondent himself, that we should refrain from holding, in all the circumstances, that this sentence is manifestly inadequate. It is the protection of the public, but not vengeance in its name, that must be our primary consideration in matters of sentence. F. de F. Stratton, P.C.C. for Applicant. Charles Ching (Fairbairn) for Respondent. |