The Queen v. Chan Kim Fai

CACC001380/1983

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Coram: McMullin, V. -P., Li & Silke, JJ.A.

Date: 10 January 1984

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JUDGMENT

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Silke, J. A.:

1. The applicant, a youth of eighteen, was convicted upon his own plea of the offence of wounding with intent. He had been jointly charged with a second defendant, a boy of fifteen. That second defendant pleaded not guilty was tried and also was convicted. Both the defendants received sentences of three years' imprisonment.

2. Prior to sentence, the trial judge asked for and received probation reports.

3. There was a group attack upon a youth of eighteen. He received multiple chop wounds upon his back and limbs. Seven of the wounds to the back went to the muscle; in the wounds to the left upper limb, one of the muscles in the left forearm was partially cut, the ankle was cut splitting some of the fibres at its back. It was a vicious attack and a very severe one.

4. There had been some dispute between the applicant and the victim some days prior to the incident. The applicant, in his cautioned statement, made it clear that he had enlisted the aid of his friends in a revenge attack by informing them of the dispute. His friends also were - in the words used by the applicant - "discontented" with the victim. They all met on a rooftop. Somebody brought weapons, the applicant armed himself with a beef knife and the attack took place.

5. It was submitted to us that the trial judge, in making reference to the second defendant not being the instigator, may well have thought the  applicant to have been. If he did he would have been entitled to do so.

6. It has further been submitted to us that this applicant pleaded guilty; that he had a clear record; that he received a reasonably good probation report whereas the second defendant had gone for trial and had a previous conviction - he was on probation - and that some allowance should have been made for these differences as between the two. When one appreciates that, as we have said, the second defendant was of the age of fifteen there is no real or apparent disparity between the two sentences.

7. We are, unfortunately, in these Courts more than well aware of the youthful age of persons who commit offences such as this. It is horrifying to see that in the probation report the applicant is reported as saying to the probation officer that "most of his friends were confined in the detention center".

8. But that having been said this is a bad case. His age is not an overwhelming mitigating factor. We take the view that the trial judge imposed a very proper sentence in all the circumstances.

9. The application for leave to appeal against sentence is therefore refused.

Representation:

F. Chan, Esq. instructed by Messrs. Howell & Lo for the Applicant.

A. Hodge, Esq. for Crown/Respondent.