ATTORNEY GENERAL v. SIT SHU NAM AND OTHERS

IN THE COURT OF APPEAL

1992, No. 11
Application for Review

HEADNOTE

Appeal against sentence - criminal with 18 previous convictions- no stranger to prison - a short sentence of imprisonment on the basis of 'the clang of the prison gates' approach inappropriate in the circumstances.

IN THE COURT OF APPEAL

1992, No. 11
Application for Review

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J U D G M E N T

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Litton, J.A.:

1. In view of the judgment that we have just given relating to the convictions of' the four applicants under section 17 of the Offences Against the Person Ordinance the application for review of sentence in relation to the first, third and fourth applicants is no longer pursued by the Crown. In relation to the second applicant Chan Cheung Yip the matter stands on a different footing because he was also convicted by the District Judge of an offence of assault upon Miss Cheng occasioning her actual bodily harm under section 39 of the Ordinance. In relation to this the second applicant was sentenced to three months' imprisonment concurrent with the other sentence.

2. Mr. Cross on behalf of the Crown makes two submissions in relation to that sentence of three months' imprisonment passed on the second applicant. Firstly he says that the approach of the judge was wrong in principle when he adopted what is called the "clang of the prison gates" approach. That is to say, that a short sentence of imprisonment would in the circumstances of the case provide a salutary lesson for the second applicant and would help him to mend his ways. Secondly Mr. Cross argues that in any case to impose a concurrent sentence is in the circumstances of the case inappropriate.

3. In relation to the first point Mr. Cross refers us to C J Emmins' Practical Approach to Sentencing at p.117 where the phrase 'clang of the prison gates' is reviewed by the author. There the author cites the classic example of the offender, for whom such a sentence is appropriate, as a middle-aged man, highly respectable, of previous good character who has committed a crime of dishonesty which is too serious for a non-custodial sentence. The author depicts the scene of such an offender feeling keenly the humiliation of being received into prison, and says in relation to him that the first weeks in prison would seem endless. Such an approach, says Mr. Cross, is wholly inappropriate in relation to the second applicant who is aged 37 and has had 18 previous convictions for various crimes, mostly drug-related, who is no stranger to prison. I agree with Mr. Cross in his observations and consider that this approach is wholly inappropriate as far as the second applicant is concerned.

4. As regards the second point, namely the concurrent sentence for the conviction under section 39 of the Offences Against the Person Ordinance, the approach of the District Judge was this. He said that the attack upon the female victim by the second applicant was part of the general attack. Whilst the facts of the case might be open to a different interpretation this was a finding which the judge was entitled to make upon the facts. Upon this basis the judge was entitled to view the sentence on the section 39charge as running concurrently with the sentence in relation to the other charge. I would therefore not interfere with the judge's approach on this ground.

5. However in relation to the length of the sentence, that is to say, three months' imprisonment I consider that grossly inadequate in the circumstance of the case. It was an unlawful attack by a male upon a defenseless female which caused her actual bodily harm. In my judgment the least sentence the judge should have imposed was one of six months' imprisonment. I would accordingly allow the application for review, discharge the sentence of three months and substitute it by a sentence of six months.

6. I would in concluding again observe that the second applicant has been very fortunate, because the result of this judgment is that he would in fact be released from prison upon the conclusion of the sentence in relation to the first charge.

Mortimer, J.:

7. I agree.

Sears, J.:

8. I agree and only add this. On the Crown case this was a joint attack by a group of persons, but the other defendants were not charged with the offence insofar as the lady was concerned. Because of this the judge was entitled, if he so chose, to view the matter on an individual basis. However I agree with what my Lord has said. As he has chosen to adopt the course of viewing this as part of a general attack, on that approach this court should not interfere. I also agree the sentence really was grossly inadequate.