HKSAR v. YAU HOK KWAN

CACC 115/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 115 OF 2003

(ON APPEAL FROM HCCC 379 OF 2002)

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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):

1. On 26 February 2003, the Applicant was sentenced in the Court of First Instance by Deputy Judge D. Pang to a total of five years' imprisonment on charges of robbery and going equipped for stealing.

2. The Applicant now seeks leave to appeal against sentence on a single ground which reads:

"Insufficient or no credit was given for the Applicant's positive good character, namely his bravery in assisting to rescue a suicidal inmate in Lai Chi Kok Reception Centre."

3. Mr McGowan, on the Applicant's behalf, does not complain that the term of imprisonment to which the Applicant was sentenced is inappropriate for the offences which had been committed. Accordingly, the facts of the case are not relevant for present purposes.

4. The incident, which is the focus of this application, was a matter which went to the Applicant's credit. Unfortunately, however, it was never brought to the judge's attention in the court below.

5. In short, on 15 February 2003, the Applicant saved the life of his cellmate by stopping his cellmate from committing suicide by hanging. We think it is going rather too far to describe this as an act of "bravery" as Mr McGowan did when adopting a passage from a letter to his instructing solicitors from the Correctional Services Department which had used that word. This was, doubtless, a most laudable humanitarian act although, in the circumstances which prevailed, it is to be hoped that it would have been a natural reaction on the part of most people to have acted in the way the Applicant did. Nevertheless, the Applicant did act in this way rather than turning a blind eye to what his cellmate was doing.

6. According to the Applicant's affirmation, he apparently thought that this incident was something about which a letter might have been written directly to the judge. Clearly, this did not happen. In the result, we admitted, as fresh evidence, under section 83V of the Criminal Procedure Ordinance, Cap. 221, the information which ought to have been provided to the judge before he passed sentence so that we could make our own assessment of it.

7. Briefly, it seems that the Applicant was awoken by a loud bang in the cell he shared with one other inmate. In the dim light, he could see that his cellmate was in the process of trying to hang himself, using a bed sheet. The Applicant got up and pressed the emergency bell. He tried to reason with his cellmate. This had no effect because his cellmate kicked away the chair he was sitting on, leaving him suspended by the neck. The Applicant positioned himself in such a way as to keep as much as possible of his cellmate's weight off his neck. Help duly arrived, by which time the Applicant's cellmate was, despite the Applicant's efforts, unconscious. We are told that the cellmate has since made a full recovery.

8. Plainly, the events in this case were "pre-sentence" and, as such,should in the normal course of events have been communicated one way or the other to the judge.

9. We have little doubt that if the sentencing judge had been informed of the position, he would have taken the Applicant's life-saving deed into account as a powerfully relevant factor in mitigation. As the judge was never told of this, it falls to us to give effect to this additional mitigation which we shall do by reducing the overall sentence being served by the Applicant to four and a half years' imprisonment.

10. Accordingly, we shall give leave and, treating the hearing as the appeal, we shall reduce the sentence of four years and eight months on the charge of robbery to four and a half years' imprisonment and we shall order that the twelve-month sentence for going equipped to steal should now, instead of being partially consecutive as before, be served wholly concurrently. This represents a reduction in the total sentence of six months' imprisonment. To this extent, the appeal succeeds.