The Queen v. Wong Ping Sum

CACC000159/1988

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BETWEEN

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Coram: Hon. Kempster, Penlington JJA & Macdougall, J.

Date of Hearing: 10th June 1988

Date of Delivery of Judgment: 10th June 1988

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J U D G M E N T

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Macdougall, J.,

1. The applicant was convicted on a plea of guilty of an offence of wounding with intent, contrary to section 17 of the Offences against the Person Ordinance. His Honour Judge Corcoran sentenced him to a term of 2 years imprisonment. The applicant now seeks leave to appeal against that sentence.

2. The agreed facts were that the victim and the applicant were neighbours in a housing estate and that, as the victim was opening the door to his room after having gone to the toilet, the applicant suddenly appeared and stabbed him in the back with a knife measuring about 22 cm. The victim fled to the ground floor of the building with the applicant in pursuit. During the chase, the victim picked up a broom from the ground to defend himself but the applicant pressed home his attack and inflicted three more wounds, one to the victim's left forearm, one to his right thigh and one to his chest which caused his right lung to collapse.

3. Shortly afterwards, the applicant was arrested and made a statement to the police. On pleading guilty before the judge, he made it plain that he was not remorseful for what he had done notwithstanding this, the judge unjustifiably gave a full discount for remorse. He gave as his reasons for so doing, the accused's age and background, and stated that he received considerable help from a Probation Officer's Report which contained the applicant's version of the background to the offence. According to what the applicant told the officer, he and the victim, who lived in the adjoining room of the same housing block, had borne grudges against each other for a number of years. The applicant did not give any details of these grudges but alleged that the relationship between the two of them had gradually gone from bad to worse and that recently the victim had threatened to send someone to beat him up. Some five days before the incident, on noticing several young men waiting at football field near the housing block, he formed the view that they were lying in wait for him and decided to arm himself with a knife to deter them from attacking him Finally, on the day of the offence he came to the conclusion that he could only resolve the unbearable tension by bringing matters to a head with an attack on the victim. During the course of the interview with the Probation Officer the applicant stated that he was ready to accept a prison sentence and had no regrets for what he had done. However, Mr. Dixon Tang, who represented him in this court, informed us that he has had a change of heart and is now regretful.

4. The applicant is a retired factory worker of 67 years of age but looks much older than his years. He has a clear record, lives alone and is dependent on public assistance for his livelihood.

5. Counsel who represented him in the court below urged the judge to consider placing him on probation or imposing a suspended sentence. But the judge took the view that as the attack had been one with a knife, neither of these courses was appropriate. It seems that both counsel and the judge overlooked the fact that wounding with intent is an excepted offence and is therefore one for which a court has no power to impose a suspended sentence.

6. The judge took the view that notwithstanding the applicant's age an immediate custodial sentence was called for. He considered that normally an offence of this nature would attract the sentence of at least 4 years imprisonment, but after taking into account the applicant's age, plea of guilty, clear record and the, background of the offence, he concluded that a sentence of 2 years imprisonment was appropriate.

7. Mr. Tang submitted that the sentence of 2 years imprisonment is manifestly excessive for three reasons. First, that in rejecting the probation order as an alternative method of dealing with the applicant, the judge erred in placing too much weight on the fact that this case was one of an attack with a knife. Secondly, that the term of 4 years imprisonment adopted by the judge as the starting point in sentencing the appellant was excessive and, thirdly, the judge paid no or no sufficient attention to the appellant's personal circumstances. Alternatively, Mr. Tang submitted that the circumstances of the case were such as to justify the exercise of clemency.

8. Numerous cases were cited to us, the facts of which covered a wide range of circumstances. We are unable, however, to discern anything in them that is of particular assistance to us in determining Whether we should grant this application.

9. While we do not condone the use of deadly weapons and are unable to say that the judge was wrong in imposing a custodial sentence, we have come to the conclusion that no useful purpose will be achieved by having this old man serve his full sentence.

10. There can be no doubt that the applicant's behaviour was entirely out of character and that after having led a long and blameless existence he suddenly succumbed to the pressures of life. We do not think that there is any likelihood that he will offend again as he has lost his unit in the housing estate and, when resettled elsewhere, will be free from the friction that existed between himself and the victim which culminated in the present offence.

11. The applicant has already served 105 days in prison. We think that he has been punished enough and that his interests and those of the community will be best served if he were to be released.

12. We therefore allow the application for leave to appeal against sentence, treat this as the hearing of the appeal, which we allow and reduce the sentence by such period as will allow for his release on Monday week. This will give the Housing Authority sufficient time within which to find him new accommodation.

Representation:

Mr. Dixon K.W. Tang (D.L.A.) for the Applicant.

Mr. A.A. Bruce for the Crown.