ATTORNEY-GENERAL v. KWOK YIK KEI AND ANOHTER

IN THE COURT OF APPEAL

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JUDGMENT

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Sentence : Robbery and separate wounding.

Silke, J.A.:

1. The Attorney-General having obtained leave, seeks to ask this Court to review the sentences passed upon the two respondents: KWOK Yik-kei, who was the 1st defendant at trial and YEUNG Yuet-wah, who was the 2nd defendant at trial, after conviction upon two counts in an indictment. The first count was the robbery of Mr. Chau. The second count was the wounding with intent to cause grievous bodily harm of Mr. Wu. The sentences in each case was six years in respect of the first count and four years in respect of the second count to run concurrently giving a totality of six years. The ground of the application is that the sentences are manifestly inadequate.

2. At about 10:30 on the evening of the 13th December 1984 the two respondents went to the Hip Sang Store on the ground floor of No.8 Yiu Tong Street in Shek Kip Mei. KWOK had been employed in that premises before this occasion and he came there with YEUNG ostensibly to have a bath. There were three persons on the premises: Mr. Chau, a cook who was in the cockloft; Mr. Wu, the son of the proprietor who was in the kitchen and an elderly man, Mr. Wong, who was a watchman. The last recognised KWOK when he knocked and allowed the two to enter.

3. Having gone upstairs they, a little later, came down to the kitchen where Mr. Wu was boiling a pot of water and, without warning, Mr. Wu was grabbed around the neck. One man who was said to be KWOK shouted "robbery" and WU was struck on the jaw with a chopper which caused him injury. He heard one of the respondents saying "Should we give him another blow?" He was given another blow which caught him on the throat.

4. He was very severely injured. The injuries were a deep laceration of the neck which involved the lower part of the thyroid cartilage - this was the second blow - a 4cm laceration on the chin with a small piece of bone being chipped - the first blow - and there a superficial laceration on the neck a few centimetres above the main wound near the thyroid cartilage: a small laceration on the right ear and a superficial laceration of the left thumb. He collapsed, bleeding profusely.

5. He was left, still bleeding profusely, by the two respondents who went upstairs having spoken of robbery.

6. There they approached Mr. Chau. He was threatened with a chopper. He was tied up and $180 was taken from him. Mr. Wu, with great fortitude and being unable to speak because of the wounds which he had received, managed to leave the premises and go to a nearby shop where, with assistance, he alerted the police. When the two respondents came downstairs after the robbery Mr. Wu had gone. They left.

7. Shortly after that, KWOK surrendered himself to the police and a few hours later, YEUNG was arrested. At trial, YEUNG pleaded guilty to both the offences. KWOK was convicted after trial. He had in his defence suggested that he was under duress and was being forced to act and to participate in these crimes by the 2nd respondent, a defence the jury clearly rejected.

8. Let us say at the outset that there is no quarrel either from Mr. Bharwaney who appears for the two respondents here today or from Mr. Longley, who appears on behalf of the Crown, to their both being dealt in the same way. There were counter-balancing aspects between the two. KWOK was aged 17 years and 5 months at the time of the incident and the 2nd respondent YEUNG was aged 18 years and 8 months. There was evidence that YEUNG was the actual striker of the blows. They both had clear records.

9. The trial judge could have approached the matter of sentence from two aspects. He could have and, in a case such as this, probably should have considered consecutive sentences. The robbery being separate from the wounding. He, however, clearly approached it on the basis of totality and it was submitted to him by counsel then appearing for the 2nd respondent that 7 years would be an appropriate totality for both the offences.

10. In passing sentence the trial judge had this to say:-

"I think Mr. Hatton's estimate which is based on the guidelines with regard to the charge of robbery seems to be quite correct. I will accept that normal sentence of 7 years in the circumstances of the robbery in this case. On that count of robbery keeping in mind your ages and your previous clear records I am sentencing each of you to a prison term of 6 years. "

 

11. He then went on to pass the 4 years sentence in respect of the wounding, concurrent.

12. He had, at an earlier stage, shown himself to be quite clearly aware of the wanton, brutality which was attached to the wounding offence. He had said:-

"          The attack on the victim in the kitchen was of a particularly savage nature as indeed was made absolutely clear not only by that victim but also by the photographs which were taken in the hospital. Had it not been for the courage and the will to live, that victim might very well have died after loss of blood. It was no thanks to either one of you that he is alive today.

 

           Leaving him with a hole in his throat from which blood was jerking out as the witness said and the 2nd defendant advising the 1st one to let him stay there, let him be, and suggesting that he would die of bleeding in due course is a matter which calls for serious consideration by me. That comment indicated full realisation of what the victim's condition at that particular time was in the 2nd defendant's own mind. " (emphasis supplied)

 

And also I would have thought, speaking for myself, have been in the mind of the 1st respondent.

13. Before passing sentence he called for and obtained Probation Officer's Reports and Reports from the Commissioner of Correctional Services in respect of each of the respondents. He had those fully in mind, as have we for we had read them. Certain aspects have been drawn to our attention by Mr. Bharwaney who had said everything that could be said on behalf of these two men.

14. We think the trial judge's approach was wrong in this respect that, having considered 7 years as the appropriate sentence for a robbery, he did not then go on to fully reflect the seriousness of the wounding charge in the totality of the sentence passed.

15. We have been referred to two earlier decisions of another division of this Court. Chan Chi Wai ⁽¹⁾ and Chan Kim Fai.⁽²⁾ In Chan Chi Wai⁽¹⁾ there was a vicious attack on a school boy of 16 by a group of men using knives. A Detention Centre Order had been made. The Court considered the ages of the perpetrators and their personal circumstances and McMullin, V.P. stated at page 5:-

"         Eventually we have come to the view that it is the public interest which requires superior consideration in the present case. We are satisfied that in any event a Detention Centre Order was, in the circumstances of this case, quite inappropriate. No case had been cited to show that in a Section 17 case - at least of similar gravity - any such sentence has ever been imposed and we would think it unlikely that such a case exists. "

 

"         With that said, we have also come to the conclusion that the alternative which was in the mind of the District Judge, that is a Training Centre Order, is not the appropriate course in the present case. "

The Detention Centre Order was set aside and a sentence of 4 years imprisonment was imposed in its place.

16. In Chan Kim Fai,⁽²⁾ a sentence of 3 years imprisonment on a Section 17 charge was not disturbed.

17. It must be remembered that each case depends to a large extent upon its own facts and we feel that, had this wounding charge stood by itself here, 4 years would not have been the appropriate sentence.

18. We are conscious of the youth of both of these defendants and it has been said in both Wong Keung Chor⁽³⁾ and in Chung Hon Ping and another⁽⁴⁾ that youthful age and clear record are considerations for a trial judge when he comes to the assessment of the sentence. Here, allowing for the gravity of the wounding count and the two defendants were fortunate not to find themselves on a murder charge for this man could well have died, and the nature of the robbery offence and approaching the matter on a totality basis, we think that, generally, 12 years would have been an appropriate overall sentence. Making allowance for the age of the two defendants, their clear records and their personal circumstances, we think that 10 years in this case would have been right. Therefore, 6 years is manifestly inadequate.

19. This being a Review, however, we would allow a discount as is the normal practice of this Court and we impose sentences of 8 years on both of the respondents. To achieve that, we would quash the sentence of 6 years imposed on the first count and that of 4 years imposed on the second count and substitute therefor 8 years on each count to run concurrently.

(1) Application for Review No. 17 of 1983 (unreported)'

(2) Application for Leave to Appeal, CA1380 of 1983 (unreported)

(3) Criminal Appeal No.446 of 1982

(4) Criminal Appeal No.518 of 1984