THE QUEEN v. CHAK SHUI CHUNG

Headnote: sentence: possessin of explosive substances: firearm: plea: mitigation: no issue tried: very severe injuries: allowance to he made.

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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. The Applicant, Chak Shui Chung, appeared before a Magistrate, Miss Beeson, on 8th June 1988 for committal upon two charges. The first under section 55(1) of the Crimes Ordinance, Cap. 200 which alleged possession of explosive substances, these being speicfically named in the charge as three plain copper detonatdrs and two friction switches. The second under section 13(1) of the Firearms and Ammunition Ordinance, alleged possession of a semi-automatic pistol.

3. He indicated that he would Plead guilty and he was committed in the High Court for sentence.

4. The matter came on before O'Dea J. on 8th July 1998. The pleas were maintained and the Applicant was sentenced on the first charge to seven years' and on the second to four years' imprisonment. The sentences were to run concurrently and the judge clearly dealt with sentencing on a totality basis the second charge could itself have attracted a sentence of six years.

5. The summary of facts upon which the prosecution relied and which formed the basis for the sentences passed showed a considerable background to the charges.

6. At about 2:30 p.m. on 21st March 1988 an explosion took place at at Hing Wah Building Un Chau Street, a mainly residential premises. A room to the 3/F flat where the explosion took place had been let to the Applicant in January 1988.

7. A resident of the premises, on hearing the explosion, investigated and found the metal grill of the flat locked but the inner wooden door unlocked. He heard a voice cry "Save Life". A report was made to the police. Fire and ambulance services arrived as did the police. A fireman managed to get the keys to the metal grill from the trousers pocket of the Applicant, for it was he who was inside the flat and the door was opened.

8. The Applicant was in a serious condition with both his hands blown off. He was taken to hospital for emergency surgery and this resulted in both his arms being amputated below the elbow.

9. When his condition stabilized he was moved to the custodial ward of Queen Elizabeth Hospital. There on 22nd March he made an unsigned cautioned statement in which there lags reference to the "fixing" of a bomb.

10. He made two further statements, one on 22nd March and one on 23rd starch. In both he paid that the bombs and the pistol had been left to him by a friend that he had been dismatling both of the bombs that he had been successful with the first but the second exploded. Bomb making components were found in the flat.

11. The Applicant had previous convictions for robbery and separately, for possession of arms and ammunition.

12. The whole of the mitigation placed before the trial fudge proceeded on the basis that bombs were involved and no one appears to have considered the specific items named in the first charge as indicating anything other than that

13. Counsel, upon instructions, submitted that the Applicant was in the process of gettinp rid of, the bombs for he was uneasy about haying them in his possession a course course of action he also intended to take in respect of the gun. He did not intend to return then to his friend.

14. It has been urged upon us by Mr. Poll, I who appears for the Applicant in this Court, that first: the Applicant should have been sentenced strictly on the basis of it the charge before the Court. With this we do not agree. The trial judge was entitled to take into consideration the whole background to the incident and to give what weight he thought fit to the manner in which mitigation was presented.

15. The second point made is that no credit was given to the Applicant for his attempt to "dismantle and neutralise the bomb".

16. This aspect, had been raised by the Applicant in his homemade grounds which he had started to Present to this Court at the first hearing of his application on 17th November. He was then unrepresented and the Court did not have the benefit of a transcript of the committal proceedings. An issue was raised by Mr. Kilgour for the Crown, who did not appear below, that there was sufficient before the sentencing judge to make him distrust the "dismantling" mitigation. We adjourned the matter for transcripts and for Legal Aid to be given to the Applicant. Hence the appearance of Mr. Poll yesterday and today.

17. There was no trial of any issue in the Court below. Mr. Kilgour has submitted to us now that there should have been as the Crown wished to advance the argument that there was a great deal more to this incident than a dismantling mere truistic dismantling which went wrong.

18. The judge seems to have accented the dismantling mitigation - we say "seems" for he made no specific finding other than to refer to the Applicant's activities as "tampering" with a bomb. Had the trial fudge and he was never asked to do so taken on board the dispute as to the background facts the courses referred by Lord Lane, L.C.J. to in Newton [1982] Crim. App.Rep.(S) 388, would have fallen for consideration.

19. But that not being the case we feel that in fairness to the Applicant we are bound by the parameters within which, it would appear the judge passed his sentence. It must be assumed that it was it he defence version of the facts, the view most favourable to the defendant, which determined the proper term to imprisonment to be imposed. For this we find support in Brown [1981] Crim.App.Rep,(S) 250.

20. But that version has this qualification - even if the dismantling were to protect the public as the Applicant had suggested, it was taking place in very dangerous circumstances and clearly contained a strong element of an attempt to divorce himself from his criminal conduct and to protect his friend. It is not a course of action which goes heavily towards mitigation.

21. Mr. Poll's third round is that the judge did not make sufficient allowance for the severe injuries received by the Applicant and is one which causes us concern.

22. The Applicant has now been fitted with two artifical limbs. His life in the future will he bleak and he will suffer great discomfort. Incarceration will bear more heavily upon him that it would on his fellow nrisioners. On this aspect the judge said this:

"But those injuries dreadful as they may be were caused as a result of your meddling with something which you knew was an explosive and as such, does not warrant any substantial discount from the sentence which I am to impose."

23. At the conclusion of the hearing yesterday we drew counsel's attention to Barbery [1976] 62 Crim.App.Rep. 248 where Eveleigh, J. (as he then was) said of Barbery who had initially received a sentence of two years' imprisonment:

"Rarbery received a most terrible injury in this fight. He is now in the course of being fitted with an artificial limb and it has reached a point where if his limb is not provided quickly and he does not practice with it properly he may become from force of habit a man who will use one hand only."

24. Yesterday we adjourned the hearing to permit counsel to see if they could find any other authorities on the sole issue with which we now think ourselves to be concerned: Should injuries received in the course of criminal acts be a factor which lies for consideration as the length of the term of imprisonment to he imposed for those criminal acts.

25. We have been addressed on Barbery today tae do not think it to be entirely on point but it does impinge on the issue before us.

26. We have been referred to the Encyclopaedia of Setencing Practice at page 3025 and, to the Portion relating to Additional Hardships Resulting from Conviction but these are not with respect, of great assistance on the particular issue which we have set out. They were all peculiar to their own facts including Rimmer which was cited at page 3026 where a appellant was convicted of causing death by dangerous driving and was injured in the accident which resulted in that charge, lie was kept in hospital for six months. He had been sentenced to six months' imprisonment. The Court of Appeal, as an, act of mercy interfered and varied that sentence to six months' imprisonment suspended. But that does not create a principle of sentencing.

27. In this jursdiction in Attorney General v.Law Shin Appligation for Review No.5 of 1984(unreported) a man was carrying a gun and shot himself in the course of that carrying. He had a good chance of recovery with some slight Permanent disability. That was not a matter which was allowed to affect sentence.

28. Then in R. v. Lee Sai Wan, Criminal Appeal No.832 of 1982 (unreported), the applicant was shot by the police in the course of his apprehension. What injuries that shot caused is not clear from the judgment but it was conceded that the fact that he was shot was not a material factor.

29. Lastly, R. v Choong Eng Yee, Criminal Apneal No 194 of 1945 (unreported), where the applicant, convicted of robbery, was at the time of the offence suffering from a cancerous tumour which affected his mental condition. He was sentenced to two years' imprisonment. The Court reduced the sentence to one effecting his immediate release, having considered further reports, on an ad misericordiam basis. Again not creating any principle.

30. We think the answer to the question ire have posed to he in the negative. In the majority of cases the injured person has brought his misfortune upon himself and it is the criminal act which attracts the punishment a punishment not lessened by virtue of damage to the perpetrator of that act while in the course of it.

31. But there are exceptions where the injuries are very serious. In our judgment this case is one. The loss of both arms is in itself both a deterent to future criminal participation and a personal punishment of great severity. In our judgment it would have been nroner for the judge to properly reflect those factors in his sentence. In all the circumstances, we think a total sentence of 5 years' imprisonment to be sufficient to reflect the criminality of the Applicant and the public condemnation for the offences.

32. We therefore grant leave and allow the appeal to this extent. The sentence of seven years on the first count is reduced to one of five years. The sentence on the second charge remains the same and continues to run concurrently with the first.