ATTORNEY GENERAL v. TSE KA WAH AND ANOTHER

Headnote

Guidelines on sentences for riot: Reference to R. v. Nguyen Duang Thong & Others CA 204, 208, 210/89 (unreported) where guidance on affray sentences given.

IN THE COURT OF APPEAL

Application for Review
No. 10 of 1990

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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. These are two applications for review of sentence by the Attorney General which have a history. In AR 13 of 1990 eight persons, D1, D3, D4, D6, D7, D8, D10 and D14 on the charge sheet, were convicted before His Honour Judge Daniel in the District Court of the-offence of riot. Each was sentenced to a period of 9 months' imprisonment. These sentences were passed on the 6th July 1990.

3. In AR 10 of 1990, Tse Ka Wah and Chan Chu Ming who had been convicted - Tse of attempting'to traffick in dangerous drugs and Chan of possession of dangerous drugs for the purpose of unlawful trafficking - were, on the 9th March 1990, sentenced respectively by Duffy J to 5 years' imprisonment and 4 years' imprisonment. Although the indictments were different both sentences were dealt with at the same time.

4. The Attorney General, on being granted leave exparte on the 4th August 1990 in respect of AR 13 and on the 26th June 1990 in respect of AR 10, to apply to this court, at the same time was given extension of time within which to make those applications. Those grants of leave and one in a third matter, AR 11 of 1990, with which we are no longer concerned, were challenged. The hearing of the challenge took place on 21st November 1990 and the 16th January 1991, judgment eventually being delivered on the 6th November 1991. The challenge in respect of AR 10 and AR 13 was rejected and this court refused, as it had been requested to do in the Notice of Motion-which lay for its consideration, to revoke or set aside the leaves granted. These two matters before us now are the substantive applications.

5. In AR 13 of 1990 .Mr. Cross, who with Mr. W.S. Cbeung appeared for Attorney General, did not seek, at this distance in, time, to have this court alter the sentences passed in 1990. What he did do was to ask us to give guidance on the proper level of sentence where there is a conviction for riot. We then intimated that we would accept the Attorney General's suggestion that "no order" be made in respect of the individuals concerned in the Review AR 13 of'1990, and would give the guidance sought.

6. In AR 10 of 1990 we reserved our' decis0ion so that a full judgment could be given in both matters and at the same time.

7. Dealing first with matters which concerned AR 13 of 1990.

8. The basic facts were that in the early hours of 27th.September 1989 at the Whitehead Detention Centre about 20 Vietnamese Nationals attacked the occupants of a but situated in the Centre. They were variously armed with wooden poles and iron water pipes. They attempted to force their way into the but and missiles were hurled at that hut. The police attended upon the disturbance and demanded that the attacking group desist. This they refused to do. The cause of the disturbance was rivalry between people from the Huey Phong and the Kwong Ning districts of Vietnam.

9. In his Reasons for Verdict the trial judge said this:

"The riot was particularly violent the defendants were part of a group of young men armed with all manner of weapons, iron pipes, wooden poles and so forth. They laid siege to a but in which their intended victims were forced to barricade themselves. Had it'not been for the timely arrival of the police I have little doubt but that serious injuries would have been inflicted.

10. In the course of his submissions Mr. Cross has drawn our attention to R v. Nguven Duang Thong and others Criminal Appeals Nos.244, 208 and 210 of 1989, dealt with together, and where the charge was affray. This, surprisingly unreported, decision considered the general circumstances which pertained in Vietnamese Detention Centres and stated, at p.5, that

"internecine warfare between uninvited guests in Hong Kong is not something which can be permitted to continue."

The court went on that, if there be a rule of sentencing practice that a deterrent sentence should not be passed on a man with a clear record - all persons concerned there had clear records - then there are exceptions and offences against public order is one of them. In offences of this. nature the necessity for the maintenance of control in these camps should be emphasised by the passing of sentences which are comparatively severe. The court acknowledged that incidents of this kind could spread like wild fire and that it was proper that sentences for the participants should be custodial and that they should seek to deter.

11. In arriving at the appropriate sentence we thought that factors which should be borne in mind include the public interest,. the interest of members of the Correctional Services Department, the element of deterrence and any mitigation which might be advanced in respect of a particular offender. The court was fully aware of the very difficult living and general conditions which prevail in these camps and the equally difficult task it is of those who have to maintain order.

12. Mr. Cross also referred us to R v. Yim Tak-wai [1967] HKLR 460 where McMullin J. as he then was, considered the sentence appropriate to riots which were then occurring in the streets of Hong Kong during that unfortunate year.

In our judgment a great deal of that which McMullin J. had to say in his judgment related to the particular conditions which then existed, nevertheless, emphasis was placed by him on the necessity for deterrence and the prevention of the repetition of this type of public order offence both of which are apposite views now.

13. Mr. Cross also referred us to Pilgrim (1983) 5 Cr.App.R. (S) 140 where Lord Lane,L.C.J. in dismissing appeals against sentence of 5 years for riot had this to say at p.144

"What a court has to pay regard to is the level of violence used, the scale of the riot or affray as described by witnesses, the extent to which it is premeditated, or on the other hand spontaneously arises, finally the number of people engaged in its execution."

Lord Lane also made reference to the factor of mitigation which should be borne in mind. He went on at p.145

"It is as well to remind oneself that one of the principal objects of the criminal. law in any civilized society is to prevent people taking the law into their own hands. Whether it is taking the law into their own hands by way of pre-emptive strikes - .... or by way of revenge, it matters not."

Those are comments which this court would, with respect, in general adopt.

14. The decision in Pilgrim was rendered before the coming into effect of The Public Order Act, 1986, which provided for maximum sentences for three particular forms of public disorder: the first being riot and the maximum 10 years imprisonment; the second "violent disorder" with the maximum of 5 years imprisonment; and the third "affray" with a maximum of 3 years imprisonment. In Hong Kong section 19 of the Public Order Ordinance, Cap. 245, creates the statutory offence of riot and in its s.s.(1) defines it. This reads:

"when any person taking part in an assembly, which is an unlawful assembly by virtue of section 18(1) commits a breach of the peace, the assembly is a riot and the persons assembled are riotously assembled."

The maximum sentence for conviction on indictment is imprisonment for 10 years and on summary conviction a fine of $5,000 and imprisonment for 5 years. Charges in the District Court are treated as if they were indictments.

15. The offence of affray is not a statutory one and is charged at common law. It carries a maximum penalty of 7 years (Interpretation and General Clauses Ordinance Cap. 1 s.90). It will be seen that the legislative background in England differs somewhat from that in Hong Kong. The venue in which the charge is laid or the indictment brought is also of consequence given that the sentencing powers of a judge of the District Court is limited to 7 years.

16. We would emph asis that we,are not here dealing with riots where the participants are also charged with other offences in addition to that of riot, for example wounding with intent. Had that been the case then the sentences passed both for riot and for wounding should reflect the gravity of both offences and we doubt if such combined offences would be left in the District Court.

17. In the light of the general guidance given to District Judges and Magistrates in Nguven Van Dhong and Others and of the matters to which we have earlier referred in this judgment we consider that the sentence here for riot, after trial, should have been 5 years.

18. Should 'there be a plea of guilty then normal sentencing principles dictate that the accused should be given credit. A clear record is something, as we have earlier said, which does not prevent. a sentence being a deterrent one.

19. In the event and purely because of the great delays that have here taken place - some of the respondents have already left the territory - we made no order on this review, although we would indicate that the sentences of 9 months imposed by the trial judge were manifestly inadequate.

20. Dealing now with AR 10/90. The amount of drugs that Tse Ka-wah, who was apprehended on the 1st July 1989 at. Kai Tak Airport, had in his possession was 220.54 grammes of a mixture containing 158.78 grammes of salts of esters of morphine. This was found in sport shoes which he was wearing. The original count on the indictment was one of trafficking in dangerous drugs. This, for reasons which are not apparent to us, was amended at trial to "Attempting to trafficking in dangerous drugs". Nothing turns on this. Tse pleaded guilty to the amended charge and accepted the summary facts which showed a conversion of this total quantity to No. 3 heroin in the amount of 3113.33 grammes. As we have indicated the sentence passed upon him was 5 years imprisonment.

21. Chan Chu-ming was indicted for possession of dangerous drugs for the purposes of unlawful trafficking. On the 2nd July 1989, at Lok Fu Estate in Kowloon, he was found in possession of 139.52 grammes of a mixture containing 132.98 grammes of salts of esters of morphine together with two smaller amounts of a mixture containing 0.28 and 0.26 grammes respectively of salts of esters of morphine. He was convicted after a trial in the course of which evidence was given of the conversion to No. 3 heroin, of the total amount of salts of esters of morphine, to the amount of 2841.4 grammes. He was sentenced to 4 years imprisonment.

22. Both of these offences had taken place subsequent to the delivery of the judgment of this court in R v. Chenq Yuen [1989]2 HKLR 258 on the 14th April 1989.

23. In the course of the sentencing process the trial judge refused to follow the line indicated in Chenq Yeunq and based his sentences solely on the tariff set out in The Queen v. Chan Chi-minq (1979) HKLR 491 and by so doing ignored the conversion factor.

24. In R v. Lau Tak-minq (1990) 2 HKLR 370 - and Mr. Sedgwick, who appears for the applicants here, accepts that what the court said in the course of that judgment places him in some difficulty - this court made reference to the views expressed by Duffy J., in another similar case. The judge had taken the view that the court in Chenq Yeunq was wrong to say that No. 4 heroin is a different substance from No. 3. He was further of the opinion that the court in Chenq Yeunq had been misled. At p.381 of Lau Tak Ming we said this

"With respect this was a misunderstanding of that which was said in Chenq Yeunq. That Court was considering the differences between the two forms of heroin not in chemical but in a realistic terms. There is a vast difference in price between No. 4 and No. 3, - $33 per gramme of No. 3 mixture : $262 per gramme of No. 4 - and the dilution of No. 4 by the use of additives can result in a vastly greater mixture of No. 3 for sale. What is more it has until recently been the positionthat the very large proportion of No. 4 in Hong Kong was solely for export particularly to the United States of America. There was in March of 1989, as was stated at page 260 of Chenq Yeunq:

'.... little or no consumption of, or market for, No. 4 heroin in Hong Kong itself.'

The statistics available in the course of the Chenq Yeunq hearing were, at the time, correct. The Court in Chenq Yeunq was not misled in any way. All the indications of the sea-change show that it had taken place after that date. Some of the new information was before Duffy J. but even that which fell for consideration then has by now altered.".

"Now" of course was 29th May 1990 the day upon which Lau Tak Ming was delivered.

25. We have no doubt that, with respect to Duffy J., he was wrong not to follow the guidance given by Chenq Yeunq as to how sentences should be assessed. The judge should have taken into consideration the notional conversion evidence and based his sentence on the result of that conversion bearing in mind the guidelines in Chan Chi-mina relating to "very substantial quantities": above 1000 grammes of a mixture the sentence ranges from 8 to 12 years imprisonment "except in cases of an unusually serious nature". The words "unusually serious nature" relate to quantities substantially in excess of 1000 grammes.

26. Here in both of these cases the starting point sentences should have been within the 8 to 12 years bracket at the very least. It is unlikely that, given the converted quantities, starting point sentences in the region.of twelve years would have been interfered with. For Tse Ka Wah the international element, the exporting from Hong Kong of drugs to other countries, was a factor to be considered. Other than his plea there was little, if any, mitigation available to him. In our judgment a sentence of 10 years imprisonment would have been fully justified.

27. For Chan Chu Ming the discount for plea does not apply although the element of exportation was absent. A sentence of 10 years imprisonment would have been justified.

28. In these reviews there are circumstances which brings into play The Attorney General v. Wong Kwok-wai (1991) 2 HKLR 384 where this court considered the question of whether there should be a discount from the sentence though proper having considered the Attorney General's application and in what circumstance it should be given. We held that a discount could be given where the respondent was very close to the end of his sentence, where the sentence imposed on Review was greatly in excess of the original sentence or where the respondent was not at the time of the Review serving a prison sentence. Factors one and two apply here and further the delay, between the offence in 1989, the sentences imposed in 1990 and the final hearing of this review in 1992 is an added factor- particular to these Reviews. And further again, we view this court as entitled to take into account the submissions made by the Crown at the time of the sentencing process which may well have assisted the sentencing judge into error.. It was stated by counsel then appearing for the Crown (at p.118)

"Firstly it is my submission that Chan Chi-ming is not binding on you. That being so, one looks at other authority which is binding, and the search is equally fruitless. That being so, my Lord, you are in a position where, having no binding authority, it is not a case of setting new law, but of necessity, striking what to this Court seems to be an equitable and proper balance."

29. That submission was clearly wrong and counsel further suggested, quite inaccurately, that the decision in Cheng Yeunq was based on information which was so unsound as to make that decision unreliable. In our judgment it is proper for the court in these Review applications to have regard to the assistance, or lack of it, afforded by the Crown to the sentencing judge when deciding whether or not to give a discount.

30. In the particular circumstances of these two applications, which we grant, we would give a discount of some significance. The sentence of 5 years on Tse is set aside and a sentence of six years imprisonment is substituted for it: the sentence of 4 years on Chan is set aside and a sentence of five years imprisonment is substituted for it.