ATTORNEY GENERAL v. WU SI PING

IN THE COURT OF APPEAL

1991, No. 11
(Application for Review)

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. On 16th September 1991, Lau Ching Yau was sentenced, by Mr. T. Lee, sitting as a Deputy Judge of the District Court, having pleaded guilty to a period of 1 years imprisonment. The charge was wounding with intent contrary to section 17, Cap. 212.

3. On 17th September 1991, Wu Si Ping was sentenced by the same Deputy Judge, in respect of two charges to which he also pleaded guilty. The first: wounding with intent contrary to section 17; the second: assault occasioning actual bodily harm contrary to section 39. He received 12 months imprisonment on the first and 3 months imprisonment on the second, the sentences to run concurrently.

4. In both these cases the Attorney General, having obtained leave on 10th October 1991, filed on 14th October 1991 an application to this court under the provisions of section 81A of the Criminal Procedure ordinance requesting this court to review those sentences on the basis that they are manifestly inadequate and/or wrong in principle. Before us, Mr. Duckett, with Miss Mahomed, represents the Crown and Mr. McCoy represents the respondents in both of the applications. We have, with the agreement of counsel, dealt with both applications together.

5. The facts in relation to the respondent Lau were that he had had marital disputes with his wife. At about 10:50 p.m. on 11th July he armed himself with a chopper and a table knife and awaited the arrival of his wife near the Hsin Kuang Restaurant, Nam Fung Centre in Tsuen Wan. When he saw her he attacked her with both the chopper and the table knife. He stabbed her twice in the stomach , twice in her right chest and once at her back. She attempted to escape but the respondent chased her and, when he caught up with her, chopped her once again and on her lower jaw. A public spirited passer-by attempted to stop the assault. At that point the wife was in a position to make her escape and did so boarding a taxi. She went straight to hospital for treatment.

6. At about 11:30 p.m. on the same night the police found the respondent awaiting their attentions in his flat. He was arrested.

7. The facts in relation to the respondent Wu were that he had been employed in a construction firm and two of his fellow employees were named Cheung Wan Loi and Chan Yuen Ming. He had apparently, by 29th July, been working with Chan for a period of one month. At about 8:00 a.m. both Cheung and Chan arrived at the construction site for work. They entered the changing room and with Cheung entering first. As he stepped into the room he was hit on the head by a water pipe held by the respondent. Upon seeing this Chan tried to run away. Wu then chased Chan and, after Chan had run for a short distance, he fell and Wu caught up with him. He then proceeded to attack Chan with a chopper which he had brought with him from his home.

8. The blows to Cheung caused a 1 cm laceration on his right cheek and a minor laceration in the occipital region. Chan sustained multiple chop wounds together with a compound fracture of his left forearm.

9. In passing the sentences he did, and we shall come back to matters of mitigation later, the trial judge in the respondent Lau expressed as his feeling that this was basically a matter of "family or marital dispute". But, he thought the gravity of the offence would call for custodial punishment. He gave due consideration to the respondent's guilty plea and to his clear record. He then went on:

"His remorsefulness for the offence is undoubted, judging from what he is going to lose as a result of it, viz., a wife and companion, as well as the love and support of his family."

10. With respect to the trial judge, he went a little far in those last remarks in the light of the contents of the probation report which he had before him and which disclosed a period of marital discord lasting for some considerable time and in which violence played its part. Further the children of the marriage had in fact supported the victim wife rather than the respondent.

11. He then went on to quote from a book which he stated was called "The Sentence of the Court - A Handbook for Courts on the Treatment of Offenders". This is a publication by HMSO and issued under the auspices of the Home Office to English sentencing courts. The passages which he quoted, both in the case of the respondent Lau and in the case of the respondent Wu, differ slightly in content, but their purpose is the same. With great respect to the trial judge he misled himself by relying on that which was contained in something which related to sentences passed in England and which had little, if any, relation to the sentencing mores of Hong Kong or sentencing practice and procedures within this jurisdiction. He was under the impression that in the case of the respondent Lau that he was the type of offender where the "Clang of the prison gates" principle would be effective. With respect to him again, we do not accept that.

12. In offences of the nature committed by the respondent Lau, he attacked his own wife as a result of a marital dispute, a trial judge is certainly entitled to take into consideration matters in mitigation which are placed before him and to consider the nature of the offender. He is equally well must consider the nature of the offence. While it is possible that the offender may not offend again, nevertheless, deterrence to others of like mind must be a consideration in the quantum of the sentence to be imposed.

13. Wu committed the offences because he had been bullied by Chan who jeered at him and resented his hardworking attitude.

14. It has been urged upon us by Mr. McCoy with his usual fluency that the nature of the mitigation in relation to the respondent Lau and indeed in relation to the respondent Wu could make them both persons upon whom an individualistic sentence could be imposed rather than sentences which would generally deter.

15. In each case the trial judge had called for and had considered probation reports. The contents of those reports have been drawn to our attention and we have considered them in the light of the submissions made to us. The report in respect of the respondent Lau referred to his being in Hong Kong for over 29 years without having been involved in trouble before, that he was a hardworking and responsible member of society and went on to make reference to his being, until this incident, a loving father and husband. As we have already indicated that last matter is not something which we fully accept. It further referred to his realisation of the enormity of his actions and of his deep and genuine remorse. There was bitter regret at that which he had done. These matters were drawn to the attention of the trial judge in mitigation in the court below and are matters, as we have indicated, we have considered. No doubt there is remorse but, nevertheless, this was a serious and grave offence.

16. It is unfortunate that, in both of these cases, no medical reports were presented to the court although we informed that in one a medical report was available and in the other, photographs. Judges should take it upon themselves in wounding cases to request that they be provided with the assistance of medical reports if those are not introduced by those appearing for the Crown. They can be presented either by way of agreement - particularly if there is a plea - or by way of evidence. They are of great assistance to the sentencing court and equally to any court considering a sentence on appeal, be that by way of Review or an appeal against sentence.

17. Mr. McCoy also urged upon us that, should we be of the view in these cases that the sentences were inadequate - which he accepts they were - nevertheless, in the particular circumstances of both of these applicants, we might consider making no order on the applications. That is not a course which commends itself to us. The sentences here were manifestly inadequate. We have borne in mind that which was said in Attorney General v. Sin Wai Lun [1988] 1 HKLR 580 where, in different circumstances of what might be termed a gang fight, the court set aside the orders imposed of probation and stated that 3 years imprisonment would have been proper. Each case, however, must relate to its own facts and be considered in the light of those facts and in the light of the particular offender and the particular offence.

18. In the case of the respondent Lau we would have thought that a proper sentence would have been one of 3 years imprisonment and in the case of the respondent Wu a proper sentence would have been one of 4 years imprisonment. In both of these cases the offences were premeditated which is a major factor for the consideration of the court.

19. In Attorney General v. Wong Kwok Wai [1991] 2 HKLR 384 this court considered the practice which had pertained up to then of giving discount where Applications for Review had been brought successfully and sentences had been increased. Having done so it went on:

"A discount might be given where the respondent was very close to the end of the sentence..."

- that applies to both of the respondents here, one being due for release next month and the other at the end of this month - and

"... or where the sentence imposed upon Review was greatly in excess of the original sentence."

In the light of the indications we have given as to what would be the proper sentences here that also applies.

20. We would allow both Applications for Review. In the case of the respondent Lau, 3 years would have been proper, but we discount that to 2 years. In the case of the respondent Wu, 4 years would have been proper, but we discount that to 3 years. That is the order of the court.