ATTORNEY GENERAL v. SIN WAI LUN

bjbj CAAR000022/1987 Application for Review No. 22 of 1987 (Criminal) IN THE COURT OF APPEAL BETWEEN ATTORNEY GENERAL Appellant SIN WAI LUN Respondent _________ Coram : Hon. Yang, V.-P., Barker, J.A. & Bewley, J. Date of hearing : 20th January 1988 Date of delivery of Judgment : 20th January 1988 ______________ J U D G M E N T ______________ Bewley, J. This is an application by the Attorney General for leave to review sentence, in fact a probation order made by Judge Downey in the District Court. Sin Wai-lun pleaded guilty to three counts of wounding with intent, contrary to section 17 of the Offences Against the Person Ordinance. On the night of the 11th August, 1987, the three victims were amongst a group of people sitting around tables at the entrance of a noddle stall in Sau Mau Ping Estate. At about 11:30 two cars drew up outside the stall and a group of six to eight persons emerged from the vehicles brandishing melon knives. They ran at the group around the noddle stall and, as they scattered, assaulted three of them with the weapons. The assailants then all boarded their cars and drove off. One of the cars that was used to transport the attackers was later found abandoned and the owner was traced and interviewed. He identified the respondent as the person who had hired the vehicle from him. The respondent was interviewed under caution and admitted being the driver of one of the cars. The first victim suffered a wound to his left wrist, which was cut to the bone. The nerve and the artery were severed and the doctor considers that there may be permanent disability. The 2nd victim suffered a 20cm laceration of his left shoulder, which was also cut to the bone, but the prognosis is for a good recovery. The third victim suffered multiple chop wounds on his face and shoulder, his upper arm and back. The tip of his nose and upper lip were cut vertically open in a 10cm laceration. There will be no permanent disability. The respondent was found unfit for the detention centre, because he had a peptic ulcer. The probation officer originally considered him unsuitable for probation, because he was evasive about the reason for taking part in this enterprise, but he agreed to see the respondent again, presumably at the urging of the judge, and this time he found him more ready to discuss his problems. He regretted his loyalty to the triad companions he had known as a teenager and he promised to turn over a new leaf. Since he had the support of his family and his employer, the probation officer recommended probation. The judge agreed and placed him on probation for two years with special conditions as to his work and residence. In doing so, he noted a number of mitigating factors to which he gave weight. Firstly, that he was the driver of the vehicle used in the attack and remained in the car throughout. He said that the attack would have taken place even if he had not participated. We are satisfied that there is no basis for this observation and it should have carried no weight. Secondly, the judge attached weight to the fact that the respondent showed remorse and co-operated with the police from an early stage. He contacted the police as soon as he heard that they were looking for him. He gave the police information about the man who had recruited him and this has resulted in the arrest and identification of this man. The respondent must receive credit for this. He had pleaded guilty. He had a clear record. He had a good job and the support of his wife and employer, who was prepared to take him back. The judge also had regard to the fact that he had spent several months in custody and had had a foretaste of what would happen if the probation order was breached. Counsel for the Attorney General submits that the sentence was wrong in principle and manifestly inadequate. He relies on the unreported case of R. v. Brett 28th July 1975, in which Roskill, L.J. said: - "In our view there is no distinction in a crime of this kind to be drawn between those who actually used the violence and those who stand outside and though not using violence are ready to drive away, to kidnap, or perform whatever other task may be appropriate. If this court or a trial judge is dealing with a case of armed robbery of a bank at gunpoint or with iron bars, or of a security van carrying large quantities of notes to a branch of a bank, it does not normally stop to consider whether a particular prisoner actually held up the cashier or held up the guard, had a gun or had an iron bar or was the driver standing outside ready to drive away. All are equally guilty because without each playing his full part the crime could not be perpetrated." That was, of course, a case of armed robbery, but we are satisfied that the principle is the same. Several recent decisions of the Court of Appeal in Hong Kong, on which Mr. Cross also relies, in particular, R. v. Chan Kim-fai(1) and R. v. Chan CHi-wai(2), make it clear that mitigating circumstances, such as existed in this case, are outweighed by the public interest in seeing that deterrent sentences of imprisonment are passed in this kind of case. As McMullin, V.-P. said in Chan Chi-wai(2):- "....we have to consider a matter of the foremost importance, and that is the public interest that this kind of activity should be visited with punishment of such a character as to bring home to all persons who are minded so to behave the realization that the court will no longer consider mere youth a sufficient barrier against the imposition of a prison sentence." Mr. Tse, for the respondent, has referred us to the case of R. v. Cheung Yuen-hing(3), in which the sentence was suspended, but that offence arose out of an argument and subsequent fightbetween two groups of men. The injuries were very much less serious than in the present case. We are satisfied that the sentence was wrong in principle. We allow the application and review the sentence. Taking the mitigating factors into account, we feel the proper sentence should have been one of three years imprisonment concurrent. This being a review, we give the usual discount and impose a sentence of two years on each count concurrent. ( E. de B. Bewley ) Judge of the High Court C.A. 1380/83 A.R. 17/83 C.A. 273/85 Representation: Mr. I.G. Cross, Senior Assistant Crown Prosecutor, and Mr. W.S. Cheung, Crown Counsel, for Appellant Mr. Joseph W.Y. Tse (M/S C.W. Leung & Co.) for Respondent (1) C.A. 1380/83 (2) A.R. 17/83 (2) A.R. 17/83 (3) C.A. 273/85 PAGE - PAGE - &`#$ &`#$ CAAR000022/1987 Normal.dot Judiciary Hong Kong SAR Microsoft Word 9.0 Judiciary Hong Kong SAR CAAR000022/1987 Title Microsoft Word Document MSWordDoc Word.Document.8 CAAR000022/1987 Normal.dot Judiciary Hong Kong SAR Microsoft Word 9.0 Judiciary Hong Kong SAR CAAR000022/1987 Title Judiciary Hong Kong