LAM CHI-WAI v. THE QUEEN

CACC000820/1978

IN THE COURT OF APPEAL	1978 No. 820
	(Criminal)

  

BETWEEN
	LAM Chi-wai	Appellant
	AND
	THE QUEEN	Respondent

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Coram: Huggins, Pickering, JJ.A. and Trainor, J.

Date of Judgment: 3 January 1979

 

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JUDGMENT

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1. This Appellant was charged jointly with another man with robbery and he alone was further charged with theft. He pleaded Guilty to both charges. The learned judge imposed a sentence of four years' imprisonment and twelve strokes of the cane on the first charge and one year's imprisonment concurrent on the second charge. The Appellant appeals against those sentences on the ground that they were too severe and against the sentence of caning on the ground that it was wrong in principle.

2. We were satisfied that the sentences were not too severe. This was one of those cases where armed robbers entered a private residence, threatened the woman occupant and then tied, blindfolded and gagged her. While one of them ransacked the flat the other held a knife to the woman's neck. We have repeatedly said that at the present time this court will not normally interfere with a sentence of six years' imprisonment for this type of offence.

3. The learned judge said that he was aware of the decision of the Full Court in Au-Yeung Ming v Reg. 1970 H.K.L.R. 193, where it was said that a judge should not make a departure from the usual practice and policy of the courts without prior consultation, but he does not suggest that there has been an agreement among the judges of the District Court sitting in Kowloon to change the existing sentencing policy. With the assistance of counsel we have ascertained that in the only case in any court in the Colony in which a sentence of caning had been imposed in addition to a substantial term of imprisonment since the beginning of 1977 that sentence was quashed on appeal.

4. We are far from saying that a sentence of corporal punishment should never be imposed in addition to a substantial term of imprisonment, but we do say that it should not be so imposed unless there are circumstances of special aggravation, for example violence indicating a high degree of callousness or where long terms of imprisonment on a particular defendant have proved ineffective: its imposition should be the exception and not the rule. Such was not the position here: there was no factor of special aggravation which made it appropriate to impose a caning in addition to a term of imprisonment.

5. We set aside the sentence imposed by the learned judge on the first charge and substitute a sentence of four and a half years' imprisonment. This is more lenient than we might have been if we had been imposing the sentence in the first instance.

 

3rd January, 1979.