THE SECRETARY FOR JUSTICE v. MA PING WAH

CAAR 1/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 1 OF 2000

(ON APPEAL FROM DCCC 1037 OF 1999)

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BETWEEN

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 24 December 1999, the Respondent pleaded guilty before Judge Wright in the District Court to a charge of robbery. The case was adjourned until 7 January 2000 for the preparation of a Training Centre Suitability Report when the judge followed the recommendation made in this report and imposed a period of detention in the Training Centre. On 28 January 2000, leave was granted by the Chief Judge to apply for a review of the sentence which had been passed on the Respondent, under the terms of section 81A of the Criminal Procedure Ordinance, Cap. 221, on the ground that the sentence imposed was both wrong in principle and/or manifestly inadequate.

Prosecution's case

2. On 9 September 1999, at a few minutes before midnight, the victim of this offence went to the male public toilets in Kik Yeung Road, Yuen Long. When he opened the door of the toilet cubicle which he had occupied and was about to leave, the Respondent hit him twice on the head with a large stone and then snatched the victim's ring from his finger. The Respondent then ran off with the victim in pursuit. Two others (PW2 and PW3) joined the chase and the Respondent was quickly caught. The police attended soon afterwards. They discovered the stolen gold ring close to the place where the Respondent had been stopped. They also found a stone measuring about 6 inches x 4 inches on the ground outside the toilet and some stone fragments inside the toilet.

3. The victim was taken to hospital where a medical examination revealed that he had sustained multiple lacerations over his forehead, the top of his head and at the back of his head. He was given a number of stitches to his wounds and was discharged later in the day. He was on sick leave from work for six days.

Antecedents and Mitigation

4. The Respondent was born on 10 October 1979 and was a month short of his twentieth birthday when he committed the offence. He is married and has a young child. Since November 1998, he had been unemployed. He was addicted to heroin and his motivation for the present offence was the need to obtain money to buy drugs. He had in his past acquired five minor previous convictions. These were between 1995 and 1997 but none of them had attracted a sentence involving the loss of liberty.

5. The Training Centre Suitability Report provided a helpful and detailed insight into the Respondent's unfortunate start in life and it concluded with these words:

"During his current remand, he was free from dangerous drugs and able to gain some insight into his problem and express his verbal remorse. In the interest of his reformation, a period of disciplinary training including counselling and proper guidance coupled with a period of statutory aftercare supervision is deemed beneficial to him."

Sentencing

6. In passing sentence, the judge noted that the Respondent had led an unstructured life without any discipline, leading to his drug addiction. He went on to say:

"Although a term of imprisonment for the offence of robbery, particularly where a weapon albeit a stone is used is appropriate, one of the major factors which a court considers when dealing with a person still relatively young is the question of rehabilitation.

A period in Training Centre will provide rehabilitation both from the point of view of providing him with a disciplined environment and perhaps a trade, and also from the point of view of being able to address the problem of his drug dependency. It seems to me, looking at the report that has been prepared, that unless the problem of the drug dependency is addressed and addressed urgently, he is likely to continue on the path of self-destruction.

There is authority that in circumstances such as these a Training Centre Order is not inappropriate.

I am of the view that in respect of this offence and this offender, it is an appropriate course for me to follow."

Application for Review

7. It is contended by Mr Grenville Cross SC, on behalf of the Applicant, that the offence with which we are presently concerned was one which could not properly be punished by the imposition of a short period of imprisonment and that training centre for an offence of this seriousness was inappropriate. However, his submissions have extended well beyond this position and it was his contention that the recent rise in the number of robberies and particularly in what are popularly known as "head bashing" cases is so alarming that the time has come for the guidelines in Mo Kwong-sang and the Queen (1981) HKLR 610 to be revisited. He submitted in particular that the prevalence of "head bashing" and other robberies is such that Mo Kwong-sang no longer provides the protection to the public that it used to because the sentences imposed under those guidelines appear no longer to be serving to deter potential robbers and are not offering a sufficient measure of protection to the public for that reason.

Fresh Evidence

8. For the purposes of advancing the argument that new guidelines are required for sentencing in cases of armed robbery, we permitted Mr Cross, without objection from Mr Mullick, who appears on behalf of the Respondent, to adduce fresh evidence under the provisions of section 83V of the Criminal Procedure Ordinance. This evidence consisted of the statements of Detective Inspector Shiu Kit-wah and Dr Fan Yiu-wah.

9. Detective Inspector Shiu's statement provided a clear demonstration that incidents of "head bashing" robberies in particular have proliferated in the period between January 1999 and April 2000. Indeed, prior to January 1999, no records were kept of robberies committed in this specific way because no trend of this kind had previously been noted. During the time between January 1999 and April 2000, 199 such cases were reported involving the loss of property worth over $3,735,000. The injuries suffered have usually taken the form of swelling, abrasion or laceration with the victims having to go to hospital for varying degrees of medical treatment. However, there have also been two cases within that time span in which death had sadly resulted. These were classified as murder. In another case, an elderly victim was hospitalised for a month following brain surgery to repair the damage done to her in a "head bashing" robbery.

10. Arising from the 199 "head bashing" robberies, which includes those that can be better described as attempted robberies or assaults with intent to rob, only 25 persons were eventually charged.

11. Detective Inspector Shiu's statement also graphically demonstrated the upward trend over the past three years in cases of robbery generally. In 1997, 2,993 cases were recorded, 3,224 cases were recorded in 1998 and 3,640 were recorded in 1999 with the vast majority being committed in the street. However, predictably, the staircase, non-domestic premises, domestic premises, the lift and public transport, in that order for the most part during the years covered by the survey, have provided the next most commonly encountered scenes of crime for the culprit bent on robbery, with jewellery shops and banks proving to be relatively rare targets. For the first four months of this year, 45 "head bashing" robberies have already been recorded, and during the whole of last year 154 were recorded.

12. The statement of Dr Fan Yiu-wah, a consultant neurosurgeon, demonstrates, again somewhat predictably, that apart from the physical injuries occasioned to the head of the victim in "head bashing" robberies, traumatic brain injury may result depending on the severity of the injury. Sometimes the result is immediate and sometimes it can occur later. The effects of this kind of injury may be physical or cognitive and, by no means least, emotional and behavioural. His report, whilst perhaps stating what may commonly be believed to be obvious by laymen, is worthy of citation as it may enable the lay sentencer to understand better the potentially grave consequences to the victims of such robberies.

13. Dr Fan's view about traumatic brain injury related to head bashing was as follows:

"The consequences of traumatic brain injury (TBI) vary depending on the severity of injury. The effects may be reflected by the associated mortality, transient or permanent disability.

If the intent of head bashing in robbery is to render the victim unconscious, the injury in question should be in the category of severe head injury. The overall mortality of severe TBI ranges from 20 to 24%. Some of these patients may suffer from bleeding in and around the brain which carries a mortality of up to 79%. Even for those who survive, they may remain vegetative or severely disabled.

Although many patients who sustained mild TBI make a full recovery within 3 to 4 months, up to a third may remain unable to work or return to school at one year after injury. Post-concussion syndrome was estimated to develop in as many as 50% of patients of mild TBI. The symptoms may be classified as physical, cognitive, emotional and behavioural. These symptoms may manifest immediately after injury, or they may not appear for several days or weeks.

The physical effects of brain injury include difficulties with intentional movement, coordination and balance. The patients may need to relearn many basic daily activities. Severe long-term fatigue is one of the most disabling symptoms. The patients become tired very easily and may require a lot more sleep than before injury. The victims may also develop post-traumatic epilepsy and become unfit to drive.

Cognitive effects of brain injury include poor memory, mental slowness, shortened attention span, poor speech, comprehension and expression. Problem-solving and organizational skills may also be affected, and this may result in difficulties with employment or education.

The emotional and behavioural problems may have significant effects on the patient's family and carers. The patients may have labile emotions, and may become depressed, irritable or anxious. They may have poor insight into these problems and their behaviour may become impulsive and disinhibited.

Many of these problems created by head injury are not of medical nature but are concerned with the adjustment of individuals and families to the realities of life after head injury. The associated financial, social and psychological loss is often difficult to quantify. The primary mode of treatment is long-term rehabilitation and support."

14. Much, if not all of that said by Dr Fan is, it was submitted, non-controversial and is, in large measure, self-evident. Additionally, the words of Spigelman CJ in R v Henry, Paul and Others (1999) 106 A Crim R 149, provide useful observations as these were made in the context of a case in which the prosecution had sought to place evidence relating to 'victim impact' before the Court of Criminal Appeal of New South Wales, to enable it to formulate sentencing guidelines of general application for the offence of armed robbery. He said at 168, under the heading "Victim impact and need for guidelines":

"The second body of material to which the Crown sought to make reference concerned the impact of armed robbery on victims. This included academic literature and the report of a clinical psychologist prepared for these proceedings. This material was said to establish the objective gravity and seriousness of the offence of armed robbery.

There is no doubt that impact on victims is an aspect of the seriousness of an individual offence. General patterns of impact of the character referred to in the literature to which the Crown referred, including statistical surveys, confirm the seriousness of the offence.

Plainly the actual impact in each particular case will vary and, appropriately, cause variations in the sentence imposed. This is not a manifestation of inconsistency. Rather, it represents the consistent application of a principle which varies in its import according to the circumstances.

The surveys and other literature, to which the Crown referred, establish that armed robbery is perceived as a life threatening situation for a majority of victims. In one Australian survey 86 per cent reported the robbery as being the most threatening experience they had ever had. Victims experienced both physiological and psychological problems. The physical effects included chronic nervousness, insomnia, nightmares, headaches and digestive problems. Psychological problems included generalised fear, depression, aggressiveness and mood changes. Sometimes the response was such as to develop into the clinical condition of post traumatic stress disorder.

The surveys and academic literature confirm what trial judges and appellate judges would in any event know, namely, that armed robbery is a serious offence by reason, inter alia, of the significant impact it has on its victims. Indeed, the submissions on behalf of the respondents to the Crown appeals did not, in contrast with criticism of the reliance by the Crown on crime statistics, challenge the materials put before the court on the impact of the crime of armed robbery on its victims.

The Crown also put before the court a report prepared for purposes of this appeal by a clinical psychologist on the effects of emotional distress in the aftermath of personal trauma, not limited to cases of armed robbery. Nothing in the report was startling or controversial and no submissions were directed to it.

This material confirms what this Court would in any event accept on the basis of commonsense and common knowledge. Armed robbery is not simply a crime against property. It is a crime against persons. Furthermore, the fear engendered by the perpetrator of this crime, together with the continued adverse effects on its victims, establish armed robbery to be a serious crime which requires condign punishment."

The guidelines in Mo Kwong-sang

15. Mo Kwong-sang (above) has provided guidance for practically nineteen years to sentencers dealing with robbers armed with a knife or any other dangerous weapon (excluding firearms) which have been displayed to the victim.

16. Roberts CJ, in giving the judgment of the court at page 611, said:

"We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim, should normally be five years.

If such a robbery also involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases) we suggest that a sentence of six years would be appropriate.

If any physical violence, which includes tying them up, is used on any of the victims, we suggest that a sentence of seven years should be considered.

These suggested sentences should be increased if there are any other aggravating factors. Among these, though the list is not exhaustive, are invasion of domestic premises during the night; the presence of more than one person in the group of robbers; threats made to victims, ill-treatment of elderly persons and children; and a multiplicity of offences of a similar kind.

These guidelines are intended to apply to those who are convicted after a trial. Thus the suggested sentences should be reduced by such amount as the court may think appropriate for a plea of guilty.

Nothing which we say, of course, should be construed as inhibiting a court from adjusting these sentences to accord with the record, age or other personal circumstances of the accused or from taking account of the particular facts of the case before it."

17. The court in Mo Kwong-sang had earlier made it clear that "little account" can be given to the previously clear record of anyone who takes part in such robberies. It is also well settled that youth is a mitigating factor of little weight unless there is "extreme youth". The court in Mo Kwong-sang went on to say that the adoption of these suggested levels of sentence would mean that in some cases the appropriate sentence would be above the District Court maximum. In such cases, the proper level of sentence should be indicated before (assuming the case to have been contested) a sentence of seven years is imposed.

18. Having looked again at the guidelines in Mo Kwong-sang, we have not been persuaded that the time is yet ripe for any general upward revision of the tariffs for armed robberies of the kind contemplated in that case. It seems to us that the courts have ample powers of dealing with the kinds of robbery for which Mo Kwong-sang provides guidelines as to sentence. Essentially, the guidelines which that case provides set out the tariffs for sentence following a contested trial but there is ample discretion provided to the courts for an upward adjustment where there are aggravating factors. However, the judgment does not provide an exhaustive list of what may amount to aggravating factors. It seems to us a matter of the most straightforward commonsense that where a robber deliberately sets about his victim by striking a blow or, as in this case, blows to the victim's head with a weapon which is capable of causing brain injury, this will be an aggravating factor. It is a particularly dangerous act.

19. However, in view of the evidence with which we have been provided, whilst we do not consider that any general changes need to be made to the Mo Kwong-sang guidelines, we are satisfied that head bashing robberies are in a category of sufficient gravity to justify a particular band of guideline sentence which was not contemplated at the time when judgment was given in that case. In our judgment, the usual sentence to be imposed for such robberies, following a contested trial, where it is established that a deliberate blow to the head with a weapon capable of causing injury to the brain has been struck by the robber or the culprit who is intent on robbery, should not be less than eight years' imprisonment. This is not, of course, a strait-jacket, and there may be some offences where a lesser penalty can be imposed depending on all of the circumstances. Equally, depending on how severely the victim is injured, there will be other cases for which greatly increased sentences will be required. In the light of this conclusion, prosecutors responsible for the preparation of such offences would be well advised to give careful consideration for the probable need to transfer future "head bashing" robberies for trial in the High Court.

20. This new guideline as to sentence cannot, of course, apply to the present case as the deterrent effect it is intended to achieve can only apply to offences committed after this judgment has been delivered. Accordingly, we now turn to consider the position of the Respondent in the light of the guidelines under Mo Kwong-sang.

Respondent's reply

21. Mr Mullick, on the Respondent's behalf, has adopted the written arguments which were placed before us well in advance of this hearing for which we are grateful. He submitted that whilst the sentence could be regarded as a lenient one it was not, to use the time-honoured phrase, "outside the range of sentences which the judge, applying his mind to all the relevant factors could reasonably consider appropriate". Mr Mullick suggested that this could be seen from an examination of the length of time the Respondent would spend in custody if the sentence was allowed to stand.

22. Taking the application for leave to appeal in HKSAR v Tang Kai-hi CACC 531/1999 (unreported), Mr Mullick pointed out that this court had said that, while the sentencing judge "could have considered a starting point of seven years, .... the original starting point of six years cannot be criticised as manifestly excessive". The court concluded, in a case where the applicant had pleaded guilty to a head bashing robbery, that four years' imprisonment would have been a proper sentence on a plea of guilty. Comparing this sentence with a training centre order, it was submitted that detention at a training centre was equivalent to a sentence of about three years and four months on a plea of guilty. It seems, therefore, that the argument presupposes that the Respondent's length of stay at the Training Centre together with the time he spent in custody before the Training Centre order was made would be in the order of about 27 months, followed by a substantial period of supervision and the possibility of recall to the Training Centre. There is, however, an obvious and glaring fallacy in this argument. The length of an offender's detention at a training centre is indeterminate, and it may be as little as six months or as much as three years.

23. The judge did not identify, when passing sentence, which authority was in his mind when he said that in circumstances such as the present "a Training Centre order is not inappropriate" but it has been pointed out that it may be that the judge was mindful of R v Cheung Wing-wai and others (1993) 2 HKCLR which is amongst the Applicant's authorities. In this case, Bokhary JA (as he then was) said at 142:

".... it must be remembered that detention in a training centre can be for up to three years and that even then there can be post-release supervision for up to another three years thereafter. The principal purpose of detention at a training centre is of course rehabilitation. But there can be no doubt that rehabilitation under such circumstances carries with it considerable punitive and deterrent elements."

24. In that case, the court was concerned with two offences of robbery committed by a former police officer (D2), who was in his early thirties, together with D3, aged 16, who was also involved in a third robbery, and D4, aged 17, who was involved in one of the robberies and had received some of the stolen goods from one of the robberies admitted by D2 and D3. Bokhary JA went on to say:

"There was no direct evidence - such evidence is not easy to bring forward - that these two young men were actually under the influence of the other two men tried with them: both of whom were much older and both of whom were former policemen. But when one approaches the matter in a realistic fashion, it is impossible to imagine that these young men were not under the influence, to some extent at least, of those two older ones. That is not to be taken into account against the older men; but it can certainly be taken into account in favour of the younger ones. It would appear that these two young men have not remained unscathed by their association with older men of criminal disposition; and it would be unrealistic to assume that they would not come under the influence of such characters in prison despite everything that the prison staff would of course do to protect them from the same. We are much more attracted to a means of treatment under which their contact with persons much older than them will be limited to prison staff and welfare personnel who will steer them in no direction except the right direction."

25. In the result, D2's sentence of seven years was upheld but the prison sentences imposed on D3 and D4 were replaced by orders of detention in a Training Centre.

26. In our opinion, Cheung Wing-wai and Others (above) provides an example of a case where the sentencing discretion which is vested in the court may, on rare occasions, extend to the imposition of a training centre order for those who participate in armed robbery of the kind contemplated in Mo Kwong-sang. However, we think there will have to be, as the court found in Cheung Wing-wai & Others, a clear demonstration of the reasons for departing from the guidelines offered in Mo Kwong-sang before such a course can be justified. Putting it another way, we do not say that a sentence of detention at a training centre can never be justified for an offence of armed robbery but the circumstances in which there is such a departure are likely to be extremely rare.

27. As a matter of general principle, it is our opinion that in cases of serious crime such as this, an order of detention at a training centre does not provide an adequate deterrent effect and, as such, provides insufficient protection to the public who look upon the courts to punish severely offenders who have committed grave offences.

28. Having regard to what we have said, we have been left in no doubt that the sentence imposed in this case was wrong in principle and manifestly inadequate. It may be that the judge placed, as Mr Cross suggested, too much emphasis on the age of the Respondent and his rehabilitation. There were no special circumstances in this case which called for a departure from the normal guidelines.

29. Taking the guidelines provided in Mo Kwong-sang, this robbery, involving as it did physical violence upon the victim, called for consideration of a sentence of seven years' imprisonment and we have been unable to find any reason why we should not apply such a starting point in the present circumstances.

Conclusion

30. Accordingly, we allow this application and quash the Training Centre order. Making an adjustment to the starting point of seven years to take into account the plea of guilty and a further small adjustment as this is a review of sentence, the starting point is reduced to four and a half years which is the sentence the Respondent must serve.

We would also, before passing from this application, ask Mr Cross to convey commendations to Tang Chi-kong (PW2) and Lam Ka-shing (PW3) which the court feels it appropriate to make as a mark of public appreciation for their assistance in bringing to justice a potentially dangerous offender. It appears that by some oversight this was overlooked in the District Court.