SECRETARY FOR JUSTICE v. WONG YIN TAK AND OTHERS

CAAR 9/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 9 OF 1999

(ON APPEAL FROM HCCC 45, 46 & 143/1999 (Consolidated))

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J U D G M E N T

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Hon Mayo VP:

1. This application for review of sentences imposed is brought by the Secretary for Justice pursuant to the leave she was granted on the 27 November 1999.

2. The respondents all pleaded not guilty to murder but guilty to manslaughter. These pleas were agreed by the prosecution and accepted by Gall J who then sentenced them all to detention in a training centre. It has to be added that the respondents' offers to plead guilty to manslaughter were not made until some time after the commencement of their trial.

3. It is the contention of the Secretary for Justice that these sentences were all manifestly inadequate and wrong in principle.

4. The agreed facts which were before Gall J were summarised by him in this way:

"... The offence took place on 20 June 1998 when a group of young people went about what could be considered a laudable enterprise of going to Lion Rock Tunnel Park to have a barbecue. In the course of their evening there two girls entered into a dispute which, by any analysis, could be said to have been a fickle dispute over the beauty or otherwise of one of the girls.

As seems to happen from time to time in Hong Kong, this foolish argument escalated, sides were taken and a point came when a telephone call was made for outside support. Support came, the fracas broke out and the deceased was killed, stabbed to death by a knife brought by one of the men who came to the park. The deceased died in circumstances of great tragedy and in circumstances where he did not deserve to be harmed let alone killed. Society demands a fitting punishment for persons involved in such a killing.

I am minded of the words of Silke J, in the case of R v Kan Wah-cheung [1991] HKLR 595 when he said:

'It may well be that time has come when disputes which degenerate into fights with or without ... (reads) must consider himself at risk of a sentence of that quantum.'

Each of the accused before me fall within persons who attached themselves to the attack and did not inflict blows that led or caused the death of the deceased, but nonetheless each must consider himself at risk of a sentence of five years increased by such measure, as I see fit, by the nature of this particular attack."

5. Undoubtedly, one of the factors which weighed heavily in the mind of the Judge was the youth of all of these respondents. At the time of the commission of the offence, R1 was aged 18 years 5 months; R2, 15 years 10 months; R3, 16 years 6 months and R4, 17 years 4 months.

6. D5 at the trial, Tsang Kai-wah also pleaded guilty to the offence. He was 25 years old. He was sentenced to 4 years imprisonment the Judge having adopted a starting point of 6 years. No application has been made to review this sentence.

7. It is helpful to consider the Judge's reasoning in adopting the approach he did:

"The four accused who were, or can be said to have been young, ranging from young persons to young adults, must be considered notwithstanding not falling within Section 109(A) of the Criminal Procedure Ordinance in the light of whether rehabilitation ought to form a measure of their punishment.

Each of them has served somewhere in the vicinity of 14 and a half to 16 months' imprisonment already. Taking a median point of 15 months with the normal time off for good behaviour that represents some 22 to 22 and half months of imprisonment already served. If I were to send them to training centre, the normal period served in detention in a training centre is a period of about 20 months. That represents, in normal detention with the one-third discount for good behaviour, a sentence of about 30 months' incarceration.

That, added to the time already served, if I were to make training centre the sentence would mean that in overall terms, bearing in mind the discount for good behaviour, each of these would serve what would amount to a sentence of just over 50 months, approximately 52 months. Let's say 4 years in round terms.

It seems to me that the difference in sentence, bearing in mind that were I to sentence them to imprisonment, I would take a starting point of 6 years' imprisonment to reflect the matters referred to in the case which I have cited, and reduce it to a period of 4 years' imprisonment by virtue of the mitigation, ably put forward by each of the counsel, that reflects almost exactly the period of time that they will have served and would serve if training centre were to be the sentence.

Training centre, to my mind has the added benefit of the preparation for life after incarceration and therefore is the desired option in respect of the accuseds 1, 2, 3 and 4. I am well aware of those cases which say that in serious offences training centre may not be the appropriate sentence, however in the peculiar circumstances of this case, where each of the accused has spent the time, I have set out, in prison already that penalty added to training centre amounts to the sentence they would otherwise serve in detention if they were sent to prison and I think the training centre for the 1st, 2nd, 3rd and 4th accused is the best option. Accordingly, each of those accused is sentenced to detention in a training centre."

8. There have been further developments since these sentences were imposed. On the date when leave was granted for this review the Commissioner for Correctional Services removed these respondents from their training centres and returned them to remand custody. If this application is successful and terms of imprisonment are imposed the time spent on remand will be taken into account in calculating the length of the sentences to be served. However the time spent in the training centre will not be taken into consideration.

9. It is accordingly not altogether surprising that Miss Draycott for R2 and Mr Tolliday-Wright for the other respondents do not oppose this application save for the caveat that they submit that their clients should not receive heavier sentences than D5 in the trial.

10. Be that as it may it is our duty to consider whether the sentences imposed by Gall J were either wrong in principle or manifestly inadequate.

11. I have no doubt that they were both wrong in principle and manifestly inadequate.

12. As has been pointed out by Mr McWalters for the applicant the sentences failed to adequately reflect the gravity of this offence. This was a brutal gang attack with knives. It was a planned attack. The victim sustained seventeen knife wounds. He died as a result of this. The interests of society require that a very serious view is taken of a case involving the loss of a human life.

13. It is to be noted that the Judge was mindful of the observations made by Silke VP in R v Kan Wah-cheung [1991] 1 HKLR 595, 597. It may be helpful to consider the whole of the passage which was in the Judge's mind.

"It may well be that the time has come when disputes which degenerate into fights, with or without the protagonists being armed, and in a public place - or more seriously in the close confines of a housing estate - from which a death results, should attract, upon conviction for manslaughter, a sentence of at least 5 years' imprisonment after trial. Such sentence could be increased depending upon the degree of violence, the nature of the weapons used, the deliberate nature of the attack and the number of the attackers. Any person who attached himself to such an attack, whether or not he himself inflicts blows, must consider himself at risk of a sentence of that quantum. It is a lamentable fact that a great many of these street fights concern youths or young persons. While s.l09A of the Criminal Procedure Ordinance should be fully borne in mind by sentencing judges nevertheless youth, unless it be extreme youth, of itself may not be a strong mitigating factor."

14. Two principles emerge from this passage. The first being that it is virtually inevitable that sentences of at least 5 years imprisonment will be imposed in cases such as this and the second being that the youth of offenders will not save them from condign punishment. Undoubtedly substantial prison sentences should have been imposed.

15. The next question which has to be considered is the appropriate sentence which should have been imposed. As already noted D5 was sentenced to 4 years imprisonment. While this sentence was undoubtedly at the lower end of the range of sentences for this type of offence it cannot be said that it was manifestly inadequate or wrong in principle. Once this is accepted it would be wrong to impose sentences on these respondents which were disparate. Otherwise they might justifiably have a legitimate sense of grievance.

16. In my view the Judge should have adopted a starting point of 6 years imprisonment having regard to the sentence imposed on D5. But for this, I do not, however, regard 6 years as an adequate sentence for such a case as this, and this judgment is not to be read as setting out a principle that a gang attack such as this will usually attract a sentence as low as 6 years. He should have given the respondents the usual 1/3 discount thus bringing the sentences down to 4 years imprisonment.

17. In my view a further small reduction should be made to reflect the fact that the time which was spent in the training centre will not count towards the sentences which were served. For this a reduction of 1 month should be made.

Hon Leong JA:

18. I agree that the application by the Secretary for Justice for review of the respondents' sentences should be granted and a period of 3 years and 11 month's imprisonment should be substituted for the sentences of detention in a Training Centre. I agree with Mayo VP that having regard to the gravity of the offence of manslaughter and the circumstances in which the respondents had committed the killing, namely a planned attack as a group on the deceased inflicting 17 stab wounds which caused his death, a substantial period of imprisonment should be imposed and the youth of the respondents should not weigh against such punishment.

19. I would only add that in AG v Li Ying-Kuen & Anor [1995] 3 HKC 539 in relation to the sentences for manslaughter and blackmail offences committed by two youths 16 and 17 years of age Power Ag CJ said this (at page 545):

"... We are in the position described by Scarman LJ in R v Inwood (1974) 60 Cr App R 70 at 72 when he said:

'In the balance that the court has to make between the mitigating factors and society's interests in marking its disapproval for this type of conduct, we come to the irresistible though unpalatable conclusion that we must not yield to the mitigating factors.'

We must bear in mind the interests of society as well as the interests of the offenders. We are conscious of the abhorrence of which right-thinking members of society must feel towards theses offences. We have no doubt that they call for immediate custodial sentences. ..."

20. In AG v Chan Wai-chung, [1996] 2 HKCLR 140, the observation by Lawton LJ in R v Prime (1983) 54 Cr App R (S) 127 at 133 was referred to in the judgment of Nazareth VP and this states:

"There are offences which are so grave that the only way that judges can demonstrate that society will not tolerate a particular kind of conduct is by passing a sentence which truly reflects the abhorrence which right-minded members of the public have of the offender's conduct."

21. What was said by Stuart Smith LJ in R v Nottingham Crown Court ex p DPP (1996) 1 Cr App R (S) 283, 288 was also referred to in the judgment of the Vice President:

"It is a cardinal principle of sentencing that the court should take into account when considering the gravity of the offence and the appropriate sentence, the consequences to the victim. This is because one of the purposes of the criminal law is to assuage the feelings of victims and their friends and relations. The law must redress their grievance by inflicting an appropriate punishment and then there is no excuse for the victim or his friends to exact their own retribution."

22. At the end, the Vice President said "We pause to observe in the light of those dicta that the sentence of 10 months, it seems to us, does not take into account those matters."

23. In an earlier case, AG v Law Ying-cheung, [1981] HKC 161 the Court of Appeal held that the rehabilitation of the offender was not the sole object of the court's sentence. Wider issues of public policy in addition, concerned the Judge and it was accepted practice under public policy consideration to impose substantial terms of imprisonment even upon young offenders, where violence was involved.

24. In my view, in the light of these authorities and dicta and the case of R v Kan Wah-cheung [1991] 1 HKLR 595, 597, the sentences imposed on the respondents do not adequately reflect the gravity of the crime they had committed. Despite their youth which normally would have attracted a more rehabilitative approach in sentencing by the court, substantial imprisonment should be imposed in the circumstances of this case, albeit Training Centre may not be regarded as a soft sentencing option in other circumstances.

Hon Keith JA:

Introduction

25. At the conclusion of the hearing, I agreed that the application should be allowed, and that there should be substituted, for the orders that the Respondents be detained in training centres, sentences of imprisonment of 3 years 11 months. However, since I reached that conclusion by a different route from that of Mayo VP and Leong JA, it is necessary for me to set out my own reasons. I do so with considerable diffidence in view of their wide experience of the criminal law.

The factual basis for sentencing

26. Nothing in this judgment should be taken as minimising the gravity of the attack on the deceased. This was as serious an attack on an unarmed man as could be imagined. He received no less than 17 wounds, and was literally chopped to death. Although none of the Respondents inflicted any of the wounds from which the deceased died, their pleas of guilty to manslaughter indicated that they accepted that they had participated in the attack on him in various ways. The 1st and 4th Respondents kicked him a number of times. The 2nd Respondent blocked his escape when he tried to get away. And although the agreed summary of facts relating to the 3rd Respondent did not refer to any particular conduct on his part, it referred to him standing behind one of the men who actually attacked the deceased with a knife. The basis, I assume, on which he tendered his plea of guilty is that he accepted that he had encouraged the attack on the deceased by his presence.

The established sentencing principles

27. Nor should anything in this judgment be taken as a departure from the established sentencing principles in cases of manslaughter. Thus, in R. v. Kan Wah Cheung [1991] 1 HKLR 595 to which Gall J referred, Silke V-P said at p. 597G-I:

"It may well be that the time has come when disputes which degenerate into fights, with or without the protagonists being armed, and in a public place - or more seriously in the close confines of a housing estate - from which a death results, should attract, upon conviction for manslaughter, a sentence of at least 5 years' imprisonment after trial. Such sentence could be increased depending upon the degree of violence, the nature of the weapons used, the deliberate nature of the attack and the number of the attackers. Any person who attaches himself to such an attack, whether or not he himself inflicts blows, must consider himself at risk of a sentence of that quantum. It is a lamentable fact that a great many of these street fights concern youths or young persons. While section 109A of the Criminal Procedure Ordinance should be fully borne in mind by sentencing judges nevertheless youth, unless it be extreme youth, of itself may not be a strong mitigating factor."

Similarly, in R. v. Ko Kam Hung [1991] 2 HKLR 433, Cons V-P said at p. 436F-H:

"The attention of [the Court in Kan Wah Cheung] was not drawn to Attorney General v. Tam Ka Lok (AR 4/90, 7 June 1990, unreported), which involved what was said to be a 'typical triad style revenge' attack, in which the attackers were armed with a variety of weapons such as wooden poles or clubs, at least one knife and one water pipe. Yet another division of this court held that the starting point of six years taken by the judge at first instance 'was on the low side, but not in (their) view so low as to be manifestly inadequate'. We take from that remark that the court had in mind about eight years, with which we would respectfully agree. In our view that would be an appropriate base for considering the case of anyone, whether himself armed or not, who takes part in a gang attack with others, some or all of whom carry weapons such as wooden poles or water pipes, and from which death ensues. It is well-established that in such circumstance youth, unless extreme, family situation or clear records count for little by way of mitigation. Triad overtones as such are irrelevant, except perhaps to indicate that the attack was premeditated. On the other hand a plea of guilty, and in some instances voluntary surrender to the authorities, will naturally be accorded due weight."

I am in entire agreement with these statements.

The approach of Gall J

28. The approach of Gall J is clearly revealed in his concise sentencing remarks. Had the Respondents been adults, he would have taken 6 years' imprisonment as his starting point, and would have imposed terms of 4 years' imprisonment to reflect their pleas of guilty and other mitigating factors. Indeed, that was the sentence which he imposed on the 5th Defendant who was an adult. No application has been made by the Secretary for Justice for leave to review that sentence, presumably because of what was said in Tam Ka Lok.

29. However, Gall J decided to order the four Respondents to be detained in training centres instead of imposing sentences of 4 years' imprisonment on them for the following reasons:

(a) The period during which the Respondents had already been in custody awaiting trial (which ranged from 141/2 to 16 months) would not count towards the period during which they were detained in training centres, because section 67A(1) of the Criminal Procedure Ordinance (Cap. 221) only applies to sentences of imprisonment.

(b) The time which the Respondents could expect to be detained in training centres was 20 months because that was what Gall J took as the average length of time which detainees spend in training centres.

(c) That would amount to roughly the same amount of time in custody that they would have to serve if they had been sentenced to 4 years' imprisonment, and were granted full remission, on the ground of industry and good conduct, under rule 69 of the Prison Rules.

Since, therefore, there was nothing to choose between the two sentences in terms of the length of time which the Respondents could expect to be in custody, it was appropriate that they be sentenced to sentences which had a strong rehabilitative element built into them.

The attack on Gall J's approach

30. Once the starting point of 6 years' imprisonment for the 5th Defendant is not regarded as manifestly inadequate or wrong in principle, Gall J's approach to the sentencing of the four Respondents was principled, practical and pragmatic. It was, in my view, an impeccable demonstration of what an innovative and imaginative approach to sentencing can achieve: a period of custody equivalent to that to be served by the 5th Defendant but with the rehabilitative advantages which detention in a training centre provides. It was a bespoke sentence, tailor-made to suit the particular facts of the case, the relevant feature of which was the unusually long time which the Respondents had been in custody pending their trial as a result of delay in the arrest of the 5th Defendant. Gall J's approach would not have been appropriate for a case without that feature.

31. On what basis, then, is it said that the sentences which Gall J imposed were either manifestly inadequate or wrong in principle? The answer is said to be the gravity of the offence. In most cases, I would entirely agree. An order for detention in a training centre would, in most cases, be wholly inappropriate for as serious a crime of manslaughter as this, whatever the age of the offender. Why? Because normally such a sentence would not involve the offender being in custody for anything like long enough. Only custodial sentences of considerable length would be appropriate. However, for the reasons which Gall J gave, that does not apply to this case: the length of time which the Respondents could expect to be in custody if they were detained in training centres was the same as the length of time which the 5th Defendant could expect to be in custody as a result of the sentence of imprisonment which he received. I therefore repeat the question which I rhetorically posed: is there some other reason why an order for detention in a training centre would be inappropriate?

32. The answer cannot be that the regime in a training centre is such that the sentence is a lenient one. As was said in Cross & Cheung, "Sentencing in Hong Kong", 3rd ed., p. 462:

"... the extent to which it is proper to regard a training centre order as being in any sense a 'lenient sentence' requires an examination of what precisely is involved in it. In Attorney General v. Kong Kin Man [1997] 1 HKC 537, 540, Litton V-P said that 'It must be emphasized that training in a training centre is not a soft option'. It is a sentence which hopefully 'will bring home to (the accused) the gravity of his conduct': HKSAR v. Lau Kwun Wing Cr. App. 591/98."

Nor can it legitimately be said that the public would be affronted by the idea that an order for detention in a training centre is an appropriate sentence for a grave case of manslaughter. Public opinion is, of course, a matter to be taken into account, but that opinion must be informed. I doubt whether members of the public would be affronted by the sentences in this case if they knew that (a) young offenders prefer, because of the differences in regime, to be detained in prison rather than in a training centre (which is well-known to lawyers practising in the criminal field), and (b) the Respondents would almost certainly be remaining in custody for as long as the 5th Defendant.

33. I appreciate, of course, that Gall J's approach involved the making of two assumptions - first, the Respondents were unlikely to be released from the training centre for about 20 months; secondly, the 5th Defendant would have been entitled to remission. In my view, Gall J. was justified in making those assumptions. As for the latter, it is well-known that the full remission of one-third (though, of course, not a right) is in fact granted in the vast majority of cases. As for the former:

"In practice, if the accused conducts himself properly and avails himself of that which is on offer, and generally displays a positive attitude, he can reasonably expect to be discharged from the training centre after a period in the region of 15 months": Cross & Cheung, op. cit., 2nd ed., p. 263.

An additional few months would have been appropriate in the present case because we were told that one of the factors taken into account by the Commissioner is the gravity of the offence for which the order for detention in a training centre was imposed.

34. I have not overlooked the established sentencing principle that a court errs if it decides the length of the term of imprisonment by reference to the probability that the defendant will earn remission. But that principle does not prevent the court from taking into account the fact that a co-defendant is likely to earn one-third remission in order to determine the nature of a sentence for a young offender who is liable for a custodial sentence which is not subject to remission such as an order for detention in a training centre.

35. For these reasons, I can detect no intellectually compelling basis for characterising the pragmatic approach adopted by Gall J (which had the advantage of nurturing the Respondents' rehabilitation into society) as resulting in sentences which were either manifestly inadequate or wrong in principle.

The injustice to the Respondents

36. However, events have occurred since Gall J sentenced the Respondents which would result in unfairness to the Respondents if the orders for detention in training centres were allowed to stand. Shortly after the Secretary for Justice had applied for leave to apply for a review of the Respondents' sentences, the Commissioner of Correctional Services removed the Respondents from the training centres in which they were then detained and has held them in remand custody ever since. The last six months or so during which the Respondents have been in remand custody will not count towards their sentences if the orders made by Gall J are upheld. If the orders are upheld, the Respondents would be spending significantly longer in custody than the 5th Defendant.

37. I can understand the thinking which, I assume, lay behind the Commissioner's action. There are a limited number of places available in training centres, and those places should not be kept for young offenders who may have orders that they be detained in a training centre substituted for some other sentence on review or appeal. Counsel had not researched the source of the Commissioner's power to remove from a training centre a young offender who had been ordered by a court of competent jurisdiction to be detained in a training centre. Having looked at the Criminal Procedure Ordinance, the Prisons Ordinance (Cap. 234) and the rules made under it, and the Training Centres Ordinance (Cap. 280), I have not been able to find such a source. The consequence is that, if the orders made by Gall J have to be set aside because their retention would result in injustice to the Respondents, the thinking underlying Gall J's approach would have been undermined, what he wanted to achieve would have been frustrated, and the Respondents would have been denied the sentence which would have served them best in the long run - all because of administrative action, well-intentioned and for good policy reasons, but nevertheless of dubious statutory authority.

38. The fact remains that the unfairness to which the Respondents would be subjected if Gall J's orders were to stand means that an intellectually respectable route has to be found which permits a way out of the impasse. In my view, such a route exists. Although Gall J's orders could not in any way be characterised as manifestly inadequate or wrong in principle at the time they were made, subsequent events (which Gall J could not have anticipated) have rendered them wrong in principle, because those events (a) have undermined the justification for the sentences he imposed and (b) resulted in injustice to the Respondents. The best which the court can do is to substitute for Gall J's orders sentences on each of the Respondents equivalent to the sentence which Gall J imposed on the 5th Defendant, but discounted to reflect the short time which the Respondents were detained in training centres, because that time would not count towards any sentences of imprisonment which are substituted.

39. I am fortified in my view that that is the best result which can be achieved in the circumstances by the fact that counsel for the Respondents themselves urged the court to take a course which would result in parity of treatment for the Respondents and the 5th Defendant. I should add that, in my view, consideration should be given to (a) the practical effect of the Commissioner's practice in relation to young offenders in the position of the Respondents, and (b) the enactment of a statutory provision to provide proper legal underpinning for that practice if the Legislature takes the view that such powers should be conferred on the Commissioner.

Hon Mayo VP:

40. The application is successful. The training centre orders are set aside. In lieu thereof, we impose sentences of 3 years 11 months imprisonment.