R. v. Poon Kam Fai

HCMA000992/1995

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.992 OF 1995

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Coram: Hon Duffy, J. in Court

Date of hearing: 22 November 1995

Date of handing down judgment: 28 November 1995

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J U D G M E N T

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1. This was an appeal against a sentence of 15 months imposed for an offence of wounding. The appellant had attacked a fellow inmate at Pik Uk prison with a folding chair causing him injuries.

2. When he appeared before the learned Magistrate, the appellant said he had nothing to say, and that what he did he had done on a momentary impulse. He also said that he was a little bit sorry. In his Statement of Findings, the learned Magistrate said this :-

"The defendant did not wish to advance any mitigation. He had declined the services of the duty lawyer scheme. I asked if he was sorry and received the answer that he was a little bit. I thought there may be some mitigation to be found in his motive, but enquiry only produced the assertion that nothing more than a momentary impulse lay behind the crime."

3. In the course of the appeal hearing, I pressed the appellant to give me the motive behind the attack. He confirmed what he had said to the learned Magistrate, that he had done it on a momentary impulse, but then told me of the background to the attack, which involved a quarrel between himself and the victim over a loan, which the victim had sought from him to pay for his legal expenses, and which he had refused to give. He told me that the victim pressured him repeatedly over the matter, and got others to do so. The appellant claimed that he had been pressured to breaking point, and that is why he attacked the victim. The attack was not the unprovoked cold-blooded attack which the learned Magistrate was given reason to believe it was.

4. I was satisfied from what the appellant had to say, and from the manner in which he said it, that this was a case in which I should reduce the sentence passed by the learned Magistrate, on a mistaken belief about the facts. I therefore allowed the appeal and reduced the sentence from 15 months to 9 months. Naturally the sentence will be served consecutively to the sentences presently being served by the appellant.

Representation:

Mr Eddie Sean, S.C.C. & Miss B. Cheng, C.C., for Crown

Appellant (Poon Kam Fai) in person