ATTORNEY GENERAL v. TAM TUNG SING

IN THE COURT OF APPEAL

       Application for Review
No. 13 of 1991

HEADNOTE

Application by the Attorney General to review a sentence of three years after plea to a charge of malicious wounding in which a group armed with knives attacked and severely wounded a single unarmed man. Court held that the starting point of trial judge was wrong as the circumstances required a starting point of nine years. Having taken into account the fact that the Respondent surrendered himself and immediately admitted guilt, the Court varied the sentence of three years to one of five and a half years.

IN THE COURT OF APPEAL

Application for Review
No. 13 of1991

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. This is an application by the Attorney General for a review of a sentence of 3 years imposed upon the respondent by Mr. Corrigan Q.C. sitting as a deputy judge of the High Court. The respondent had pleaded guilty to charge of wounding with intent. It being admitted that he, in the company of others, on 13th January 1990, inside the cooked food stall at No. 956-962 Canton Road, Mongkok, unlawfully and maliciously wounded HUI Pui-wing with intent to do him grievous bodily harm.

3. The offence was a premeditated vicious attack by a group armed with knives on a single unarmed man. Before the trial judge, there were some initial difficulty in arriving at an agreed set of facts. This arose because the victim said that the respondent had been one of those who actually used the knife to strike him and the respondent denied this. In the outcome the following facts were agreed: the victim was a worker in a cooked food stall in Canton Road, Tsimshatsui and that part of his work involved collecting pigs blood from the Cheung Sha Wan Abattoir; at about 3.25 p.m. on 13th January 1990 the victim, working alone in his stall, being alerted by a declaration "It's him", turned and saw five men, including the respondent, holding knives and approaching him; the victim, aware that he was about to be attacked, endeavoured to flee but was chopped and wounded; he fainted and, on regaining consciousness, he was in hospital.

4. As a result of the chopping, the victim sustained the following injuries - chop wound to the skull resulting in a fractured skull, chop wounds to upper chest, abdomen, shoulder, right thigh and knee, multiple chop wounds over the right elbow and right forearm, an amputated right thumb, a chop wound to the left palm dividing the palm into two halves. As a result of medical treatment it was necessary to amputate the victim's left index and little fingers. The victim was discharged from the hospital on 15th March 1990.

5. The respondent was placed on a wanted list but he surrendered to the police on 26th March 1991. When interviewed he stated that in January 1990 he was in urgent need of money after his wife had given birth to a daughter. He said that at the time he was working in Cheung Sha Wan Abattoir and was approached by an acquaintance named Ngau Wing to assist him to "do something" for which he would be paid $8,000. The respondent agreed to the proposal and met Ngau Wing at 1 p.m. on 13th January 1990 at which time he was handed a beef knife and told that they were going have a chopping. He stated that he initially refused however, Ngau Wing said that he would not let him get away if he refused to go and led the respondent and two others to the cooked food market where the victim worked. The respondent stated that he stood at the entrance of the cooked food market and was dumbstruck as the victim was chopped. He stated that after the chopping was complete he saw the others run away and he, therefore, ran away separately and threw the knife he was carrying into a nearby dustbin and that he then went back to his home but did not dare look for Ngau Wing. At that point in the recitation of facts, the Crown prosecutor interposed,

"That's the explanation he gave to the police, my Lord."

He went on:

"Following his arrest the defendant was placed in a police identification parade and formally identified by the victim."

6. Mr. Macrae, who appears today for the respondent and who appeared at the trial, made the following statement before the recitation of the agreed facts:

"I am instructed that he is prepared to plead guilty on the basis that he was knowingly and willingly and intentionally one of the assailants who participated in this attack on the victim. I am bound to say he does not accept that he himself inflicted a blow but he was there as part of the group with full knowledge and full intent and to share responsibility for those taking a more prominent role."

7. The trial judge when sentencing clearly took into account all of the mitigating factors that had been urged. He summarized them as follows:

"In proceeding to sentence you, I take full account of all the circumstances which do go to mitigation of the penalty in this case. I take full account of your surrender, your very early plea, your comparatively young age, your clear record, your obvious remorse and your cooperation in that you have said that if this man, or indeed others, are caught by the police, you will be prepared to testify against them."

The trial judge also took into account that the respondent had been involved in a serious traffic accident prior to the date of sentencing and had sustained serious injuries.

8. The Attorney General submits that the sentences are manifestly inadequate as the trial judge attached insufficient weight to the fact that it was a planned attack involving extreme violence which resulted in massive injuries. It is also suggested that not enough weight given to the fact that the respondent had, on his own admission, participated for a reward of $8,000.

9. The Attorney General is today before us represented by Mr. Bruce who points to the need for courts to impose sentences in offences of this kind which will act as a deterrence. He also submits that the trial judge was wrong both in his starting point of 5-6 years and in the quantum of discount which he allowed.

10. It is urged by Mr. Macrae that the sentence, while lenient, was within the proper range. He submits that, beside the serious aspects to Mr. Bruce referred, it must be borne in mind that it did not take place on domestic premises and that it not triad related.

11. Mr. Macrae emphasized that a starting point of 12 years, to which reference was made in one of the cases to Mr. Bruce referred, was only thought appropriate where more than one offence was being dealt with. He submits that the trial judge should be regarded as having taken five years as the starting point and that the discount of 40% while generous was not, given all of an improper one.

12. We are satisfied on the facts that the trial judge was wrong in his starting point. This was a premeditated attack in company. It was viciously executed and was such, given the weapons used, as might well have resulted in death.

13. As McMullin V.(P. said in The Queen v. CHAN Chi-wai Application for Review No.17 of 1983 (unreported) the public interest, which calls for the courts to impose sentences that will deter like minded persons, must be given superior consideration in cases such as this. An appropriate starting point would, in our view, have been one of nine years. Using that figure and giving full weight to the plea of guilty and the other mitigating circumstances, that sentence can be properly discounted to one of five and a half years.

14. In allowing this discount, which we appreciate is a generous one, we have given heed, to the weighty mitigating circumstances, and in particular to the surrender and the immediate admission of guilt which rightly very much impressed the trial judge. Having considered the guidelines adopted by this court in Attorney General v. WONG Kwok-wai [1991] 2 HKLR p.384, we are satisfied that no further discount is appropriate on the ground that this was an Attorney General's Application for Review.

15. The application will be allowed and the sentence will be varied from one of three years to one of five and a half years.