اساسا
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IDENTIAL
5
"We have the greatest sympathy with and understanding of the sentiment expressed by the learned trial judge. It is with some reluctance that we vary the sentence. The
reason why we vary the sentence is because
way back in 1970 in the case of Au Yeung Ming v. The Queen (in 1970 H.K.L.R. 1973) the Full Court decided that where corporal punishment had not been imposed for a long period of time there should be a consultation within the Judiciary before its imposition be revived. In this case both counsel tell us that they are not aware of any corporal punishment being awarded in the District Court since 1976.
The Crown concedes that there is nothing in the reasons for verdict to indicate the learned trial judge had consulted with the other judges before imposing this particular sentence of caning. Following the decision in Au Yeung Ming's case we feel we are obliged, with some reluctance, to set aside the sentence of caning.
The learned trial judge had indicated that three years imprisonment was by no means sufficient or adequate either as a punishment or as a deterrent. When the Judge had to deal
with a case as serious a nature as this he had taken into account the Appellant's age and his being a first offender. Since the Appellant is appealing against the sentence this court has jurisdiction to impose a substitute
sentence. This was done in the case of Lam Chi Wai - Criminal Appeal No.- 820/1978.
CONFIDENTIAL
/P.6
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