Wan Pak-shing v. The Queen

CACC001365/1977

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Coram: Huggins J.A.

Date of Judgment: 12th January 1978.

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JUDGMENT

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1. I have been in two minds about this case but have decided that I should err, if at all, in favour of leniency.

2. The Appellant pleaded guilty to assault occasioning actual bodily harm. On the face of it there is very little justification for leniency. The Appellant and three others attacked a man while he was eating at a noodle stall. One of the attackers (not the Appellant) had a knife. That knife was used to chop the victim. The other attackers hit the victim with their fists. It turns out that this was in fact a revenge attack, for the Appellant himself had previously been attacked by the victim. This appeared to the learned magistrate "to afford little excuse". It may not provide any justification but it does indicate a measure of provocation. It would certainly not excuse the use of a knife. The magistrate expressly said that there was no evidence that the Appellant knew one of his companions had a knife, although he thought the Appellant must have become aware of it during the course of the attack.

3. The Appellant was only fifteen years and eight months old at the time of the offence. The magistrate had the advantage of two probation reports and a report from the Prisons Department. Both the probation reports were rather favourable and suggested eighteen months probation, but the Intake Officer at the Pik Uk Correctional Institute was less impressed with the Appellant's good qualities. The court was therefore placed in a difficult position and the order made of detention in a detention centre does not at first sight appear to be wrong. I am, however, impressed by the very full reports made by the probation officers and their opinion that institutional training might not be a good thing at this stage. Not without considerable hesitation I have decided to allow this appeal and to substitute an order of probation for the term of detention. That will, however, be subject to the Appellant's agreement.

12th January 1978.

Representation: