ATTORNEY GENERAL v. LAM YAT SING

1992, No. 14

(Application for Review)

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J U D G M E N T

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Fuad, V.-P. (giving the judgment of the court):

1. This is an application by the Attorney General, pursuant to leave given by the Chief Justice, under section 81A of the Criminal Procedure Ordinance to review a sentence passed on 3rd December 1992 by Judge Chua in the District Court. The respondent to this application, Lam Yat Sing, had been convicted, after trial, of wounding with intent to cause grievous bodily harm contrary to section 17 of the Offences against the Person Ordinance, Cap¹. 212. He was sentenced to 4 months' imprisonment.

2. The incident out of which the charge arose occurred on 26th July 1991 and was witnessed by the caretaker of the block of flats where the respondent lived on the 1st floor. The caretaker who was the Crown's main witness told the court that at about 9.30 a.m. that day, the man who was later assaulted came to the building in the company of two women. The grille across the main entrance to the flats was closed. They therefore waited until someone who lived there used a key to open it so that they could enter the building. One of the women then went upstairs by the staircase. The victim of the assault and the other woman waited for some 10-15 minutes before following the other woman upstairs. Then all three of them came downstairs to where the caretaker was on duty. The caretaker recognised one of the women as a friend of the respondent; he had seen them together twice previously. From the conversation that took place it became apparent to him that the two women were sisters. After talking together for a while, the respondent and the two women went upstairs again. Shortly afterwards, the caretaker saw the victim running downstairs being chased by the respondent armed with a chopper. By this time the grille to the main entrance had been closed again and the victim could not get out of the building. While trapped there, he was struck on the left side of his face by the respondent with a chopper. He started to bleed immediately. The respondent ran upstairs after the assault.

3. When the police came to the building in response to a report, the victim was sitting down being tended by the two women. Two police officers went up to the flat occupied by the respondent and knocked on the door. When the door was opened they asked the respondent whether he had been involved in the wounding case that had occurred on the ground floor and he admitted that he had been. The police officers saw a chopper in the kitchen of the flat and asked the respondent whether that was the weapon he had used in the assault and the respondent agreed that it was.

4. This was the only evidence about the incident led by the prosecution because at the time of the trial the victim and the two ladies were not available to testify. We were not told why this was so, and the judge was at pains to point out that there had been no suggestion that their absence had in any way been due to anything for which the respondent was responsible. Thus we do not know, nor did the judge know, what happened upstairs, but it was common ground that the respondent had been friendly with one of the two women and that their purpose in going there that day was to recover her handbag which was in the respondent's flat.

5. The victim was taken by ambulance to Queen Mary Hospital for treatment and was discharged after two days. He was found to have two wounds: a deep laceration 7 cm long on the left side of his face and a superficial laceration 3 cm long lower down on his jaw. This evidence suggested that two blows must have been struck although the caretaker gave evidence about only one blow. The more serious wound required 6 stitches and the less serious one 3 stitches. One of the blows had caused a slight fracture of the left mandible. No permanent disability was suffered by the victim.

6. The judge, in her Reasons for Sentence, noted that the respondent was aged 27 and that he had previously been before the court over an incident when a man had been killed in a gang fight. The respondent had been convicted in June 1982 with others of manslaughter and wounding. He was about 16 years old at that time and was sent to Training Centre. The judge referred to the probation officer's report which was before her indicating that the respondent had obviously responded well to the training he had received because he had thereafter led a law-abiding life, for a period of some 10 years. The judge referred to the respondent's career. The probation officer's report showed that for the past five years he has been earning good money running a shoe business set up with his father's help, and working very long hours.

7. Although we do not know the present position the report informed the judge that the respondent had planned to get married at the end of 1991 and that the marriage had been put off due to the court proceedings. The judge also noted that the report had indicated that the respondent had strong family ties with his sisters and that all the members of his family spoke highly of his diligence as well as of his respectful and responsible attitude towards both them and the employees in the shoe factory. He also helped with the mortgage payments for the family apartment and contributed to the family's household expenses.

8. The judge concluded her Reasons for Sentence by saying this:

"This case can be distinguished from other cases of triad attacks. This was not a premeditated event but appears to be a flare-up after some argument. The cut-wound resulting from the chop required suturing but the victim was discharged after two days. Although there was a fracture, I think the injury was not as serious as first appeared and there should have been no permanent damage."

9. On behalf of the Attorney General Mr. Cross has submitted that the sentence imposed was manifestly inadequate as well as being wrong in principle. The sentence did not reflect the gravity of the offence committed. The attack was with a murderous weapon on a defenceless man and the blows were struck on a very vulnerable part of the body. Even if it could be said that the offence was out of character, the judge had not sufficiently recognised the need to deter others from committing such crimes of violence.

10. Mr. Cross suggested that the judge had imposed a sentence which might have been appropriate for a case of common assault or one of assault occasioning actual bodily harm, where it was felt that a custodial sentence was necessary but that a sentence of 4 months' imprisonment, after trial, could not be regarded as appropriate for an offence which, on indictment, was punishable by life imprisonment. Mr. Cross also pointed out that the respondent could claim no credit for such mitigating factors as a plea of guilty and a clear record.

11. We should mention that although the respondent did not give evidence at the trial, he tried, through the cross-examination of the principal witness by his counsel, to establish that the assault was either committed in self-defence or that it was an accident.

12. Mr. Cross has drawn our attention to a number of cases as examples of the kind of sentence that has been regarded as appropriate in particular cases of this nature. We do not find the cases cited both by him, and by Mr. Ashok Sakhrani (who represented the respondent before us as he had represented him at the trial) of any great assistance because, as is common ground, everything will depend so heavily on the particular facts of each case.

13. Mr. Sakhrani in his able and helpful submissions contended that it was perfectly plain that the judge had carefully considered all the circumstances of the case and that there was no indication that she had erred in any way. The reasons she had given, he contended, fully justified the sentence imposed, although he accepted that it was indeed a lenient sentence. Mr. Sakhrani also acknowledged that a custodial sentence was inevitable. Counsel informed us that two comparable cases, where far more severe sentences than that imposed in the present case for wounding with intent had been passed, had been cited to the judge and he submitted that she must have had them well in mind. He invited us to hesitate long before interfering with the discretion which the legislature has given to the judge in deciding what sentence should be imposed.

14. We have carefully considered all the submissions made to us by Mr. Cross and Mr. Sakhrani and have reached the conclusion that the Attorney General's application was fully justified. We entertain no doubt that the sentence imposed by the judge was so inadequate that we are bound to interfere with it. With great respect to her, we consider that a judicial discretion in determining what sentence to impose on the facts of this particular case, having regard to all the matters that had to be taken into consideration, could not, if properly exercised, have resulted in a sentence of only 4 months' imprisonment.

15. The respondent could, but for this application, have expected to be released so that he would be able to go home just before the beginning of the Lunar New Year holidays. We take into account the fact that he was shortly due to be released (on 22nd January) and give a "discount" on the principles enunciated by Silke, V.P. when giving the judgment of the court in Attorney General v. Wong Kwok Wai [1991] 2 HKLR 384.

16. We consider that the appropriate sentence should have been imprisonment for 2 years and 6 months, but in the light of what we have said about the discount, the order we make, on allowing the application, is that the sentence of 4 months imposed by the judge is set aside and that in its place a sentence of imprisonment for 2 years is substituted.