YIP KAI FOON v. HKSAR

FAMC Nos. 35 & 36 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS. 35 & 36 OF 1999 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NOS 138 and 139 OF 1997)

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DETERMINATION

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Chief Justice Li:

1. This is the determination of the Appeal Committee by majority.

2. In 1985 this applicant was convicted on two counts of handling stolen jewellery and two counts of possession of firearms. He was sentenced to a total of 18 years' imprisonment. This was reduced on appeal to a total of 16 years' imprisonment. While serving that sentence in Stanley Prison, he was sent to the custodial ward at Queen Mary Hospital for medical attention. From there he escaped. This was on 24 August 1989. In the course of making that escape, he commandeered a van and kidnapped the van driver and the van driver's son.

3. He remained at large for almost 7 years. Then in the early hours of the morning of 13 May 1996 he was re-arrested in Western District. This occurred in violent and dramatic circumstances typical of his criminal career. A party of police officers approached a group of men including the applicant. He was in possession of guns, ammunition and almost 2kg of TNT. Using one of his guns, he opened fire on the officers. They returned fire. The other men escaped. But the applicant himself lay wounded in the street. He had suffered a gunshot wound which has left him paralyzed from the waist down.

4. The circumstances of the applicant's re-arrest in 1996 resulted in four counts against him ("the re-arrest counts"). Three counts were also brought against him in regard to his escape in 1989 ("the escape counts").

5. The re-arrest counts were brought in High Court Criminal Case No. 270 of 1996. The first re-arrest count was of possession of arms and ammunition. The second was of using arms and ammunition with intent to resist arrest. The third was of possession of an explosive substance with intent to endanger life or property. The fourth was in the alternative to the third, and was simply of possession of an explosive substance.

6. To these counts the applicant pleaded not guilty. But he was, on 10 March 1997, convicted after trial on the first three counts. His conviction on the third count meant of course that the fourth count, being in the alternative thereto, fell out of consideration.

7. As soon as the applicant was convicted on the re-arrest counts, the case in which he faced the escape counts was called on before the same judge, Stuart-Moore J (as the learned Vice President then was). This was High Court Criminal Case No. 271 of 1996. The first escape count was of escaping from legal custody. The other two were of kidnapping. The applicant pleaded guilty to all three escape counts.

8. On the re-arrest counts, the applicant was sentenced to a total of 25 years' imprisonment. This included a sentence of 20 years for the second re-arrest count of using arms and ammunition with intent to resist arrest. On the escape counts, he was sentenced to a total of 5 years' imprisonment. These terms of 25 years and 5 years' duration respectively were made consecutive, resulting in a total of 30 years' imprisonment.

9. This total of 30 years was in turn made consecutive to the 11 years and 3 months which then remained of the 16-year term which the applicant had been serving at the time of his escape. In the result, therefore, the sentencing judge left the applicant with a total of 41 years and 3 months' imprisonment to serve.

10. The applicant appealed against sentence. On 23 April 1999, the Court of Appeal (Power VP, Mortimer VP and Mayo JA) allowed the appeal to the extent of leaving the applicant with a total of 36 years and 3 months' imprisonment to serve. The sentence on the escape counts was reduced to 4 years; this was done by reducing the sentence on the first escape count from 2 years to 1 year. The term of 29 years (that is 4 years on the escape counts and 25 years on the re-arrest counts) was then ordered to commence 4 years prior to the expiration of the sentence which the applicant was serving at the time of his escape.

11. That reduction of sentence did not take into account the applicant's physical condition of being paralysed from the waist down with his life expectancy shortened. As to that, the Court of Appeal said this:

"We are asked to bear in mind that the applicant is a paraplegic who must endure grave hardship which is not the lot of an ordinary prisoner and that his life expectancy has been substantially reduced. We acknowledge that it is in our discretion to give weight to this ad miseracordiam plea, but are satisfied, as was the judge, that any such considerations should be left for the Executive."

For convenience, I shall refer to the above passage to "the passage in question".

12. The sentencing judge had made no reference to the applicant's paraplegia beyond saying to the applicant:

"I am satisfied that you no longer pose any danger to the public ... I am persuaded that it would not be appropriate to pass a life sentence".

13. The applicant now seeks leave to appeal out of time against sentence to the Court of Final Appeal. For that purpose he asked the Court of Appeal to certify, under s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, the involvement of a point of law of great and general importance. On 14 December 1999, the Court of Appeal (Mayo, Wong and Keith JJA) so certified, identifying the point in these terms:

"Whether serious injuries received by an accused in the course of criminal acts can be a factor which lies for consideration by the sentencing court as to the length of the term of imprisonment to be imposed for those criminal acts."

14. Armed with that certificate, the applicant now asks this Committee to grant it leave to appeal to the Court of Final Appeal for him to seek a reduction of sentence by advancing the following grounds (i) that the Court of Appeal erred in failing to take his paraplegia into account; and (ii) that such failure has resulted in substantial and grave injustice. In the course of argument before us, Mr Macrae SC for the applicant said he would amend the certified question by substituting the word "should" for "can" in the 2nd line.

15. It is well-established that as Litton JA (as he then was) observed in Re C W Reid [1994] 2 HKLR 14 at 24:

"The responsibility for the proper punishment of offenders rests with the courts. This is done by the application of guidelines and principles to the facts of the particular case: guidelines and principles which the courts themselves have evolved over the years."

The judicial review challenge in that case concerned the proper discount to be given a sentence of imprisonment for the assistance the defendant had rendered to the police in the prosecution of other offenders. Litton JA stated:

"When the court gives a defendant a discount ...... it articulates its reasons in open court, applying well-considered policy reasons to the treatment of offenders. As a matter of principle it seems to me that the practice of leaving it to the executive to deal with the proper discount under Article XV of the Letters Patent can only be justified if there is no other course the courts themselves can properly take, since the remission of sentence under Article XV is done behind closed bureaucratic doors and is the exercise of a purely executive function."

Article 48(12) of the Basic Law now provides that the Chief Executive has the power and function to commute the penalties of prisoners convicted of criminal offences.

16. Under the guidelines and principles evolved by the courts, medical grounds will seldom, if ever, be a basis for reducing the sentence for crimes of gravity. See HKSAR v Tong Fuk Sing [1999] 3 HKC 332 (Court of Appeal) 332 at 336D per Stuart-Moore VP where the crime of gravity in question was domestic burglary for which the Court of Appeal substituted a sentence of 3 years in place of the 18 months imposed by the trial judge. See also R v Ho Mei Lin [1996] 4 HKC 491 (Court of Appeal) at 493B where Nazareth VP in a drugs trafficking case observed that "...... it is well-established that ill health is not normally a reason for reducing a proper sentence."

17. In these cases, the defendant's physical condition did not result from injuries received in the course of criminal acts. Where his condition did so result, the Court of Appeal held in R v Chak Shui-chung [1989] 2 HKLR 81 that as a general rule such injuries would not be a factor for consideration as regards the length of imprisonment to be imposed for those criminal acts. As Silke VP observed at 84G:-

"...... 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."

But it was held that there are exceptions where the injuries are very serious. What the Court of Appeal was saying was that, exceptionally, very serious injuries, even where suffered in the course of criminal activity, can be taken into account to reduce the sentence. There is of course no question of "must be". In deciding whether the sentence should be reduced for this reason, all the circumstances of the case would have to be considered. In Chak Shui-chung, the defendant lost both arms when dismantling bombs and had pleaded guilty to possession of explosive substances. The Court of Appeal, in deciding to reduce the sentence of imprisonment from 7 to 5 years, considered that in the circumstances of that case the loss of both arms was in itself both a deterrent to future criminal participation and a personal punishment of great severity.

18. The guidelines and principles for sentencing evolved in these cases are plainly sound and should be applied by the courts. The cases, in particular Chak Shui-chung, provides the clear answer to the certified question (as amended) here.

19. Mr Macrae SC for the applicant submitted that the passage in question shows that the Court of Appeal did not consider the question at all as to what weight if any should be given to the applicant's condition as a paraplegic with his life expectancy reduced. Instead it erroneously left the matter to the Executive. On the other hand, Mr Cross SC for the respondent submitted that the passage in question when read in the context of other passages meant that the Court did consider this question and decided to give no weight to it having regard to the extreme gravity of the offences. It must be observed that if this is what the Court of Appeal had intended to say, they could have expressed themselves much more clearly. The passage in question could certainly be read as submitted by Mr Macrae SC. It should be so read for the purposes of this application and the Court of Appeal was in our judgment wrong in not considering the question at all and in leaving it to the Executive.

20. However, in seeking leave, the applicant must establish an arguable case that the sentencing court considering the question would give weight to his condition and reduce his sentence for that reason. In the circumstances of this case, we are not satisfied that the applicant has made out such a case. The sentencing court has to take into account a variety of factors. It must be accepted that the injuries suffered by the applicant resulting in his present condition were very serious. But we are concerned with extremely grave offences. The applicant suffered his injuries in a gun battle between his gang and the police. Fortunately, no police officers or members of the public were injured but they were put to terrible risk. As the Court of Appeal said:-

"The judge was dealing with a criminal gang led by an escaped convict who, in the dead of night, while transporting explosives for an unknown but undoubtedly gravely serious criminal purpose, engaged in a fire fight with pursuing police officers in an endeavour to escape arrest. The offence was, we are satisfied, in the most serious band of such offences and it warranted the sentence of 20 years imposed by the judge. A court when sentencing in such circumstances must bear in mind the terrible risk to which police officers and, indeed, members of the public are exposed to by such behaviour. Sentences must be imposed which, to use the words of Lord Denning, express "the emphatic denunciation by the community of" such crimes.

......The explosives consisted of almost 2kg of TNT. We do not, as we have said, know to what use it was intended this explosive be put but we do know that it had the capacity to inflict terrible damage to life and property in a crowded city such as Hong Kong. ....."

As the Court of Appeal quite rightly stated, the actions of the applicant and his gang came very close to declaring war on society and "a court would be failing in its duty to the public if it did not impose heavy deterrent sentences in circumstances such as this."

Accordingly, we dismiss the application for leave to appeal and that for the extension of time.