Tsang Lo-wa v. The Queen
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CACC000231/1979
----------------- Coram: Huggins, J.A., McMullin & Yang, JJ. Date of Judgment: 21 June 1979 ----------------- JUDGMENT ----------------- McMullin, J.: 1. We have not found this entirely an easy matter to decide. The applicant pleaded guilty to a single count of wounding with intent and for the offence he received a sentence of three years. Mr. Cheung has referred us to various decisions of this court and he maintains that in view of the background of this particular applicant the learned district judge imposed a sentence that was too high having regard to that background; and secondly, he says that in any event the sentence imposed is heavier than the normal sentence imposed for offences of this kind. We must say at once that we do not think that the sentence imposed is to be regarded as exceeding the normal tariff of sentences in respect of such offences. However it is very true that the background of this particular applicant discloses circumstances sufficient to excite a certain degree of sympathy from this court. 2. The applicant is an adopted child. His adoptive parents were formerly engaged in the manufacture of bean curd and they carried on that trade in a house or hut of a temporary character which was in addition an illegal structure. The attack which resulted in the charge was carried out by the applicant on the 17th of November when officers of the Squatter Control Force in pursuance of their lawful duties were engaged in demolishing the very hut in which the applicant and his adoptive parents had lived and at which he had assisted them in their trade. The applicant broke through a cordon of such officers and attacked the victim, Mr. CHEUNG Ping-leung who was in charge of the operation stabbing him twice in the back with a pair of scissors. The injuries received by Mr. Cheung were, as is conceded by the Crown, not of the most serious character although the opposite might well have been the case. He received one wound 1 cm. long and ½ cm. deep and another which was 1 cm. long and 1½ cm. deep. These wounds required treatment in hospital where the victim was detained for some three days before being released. He has made a full recovery. 3. This court is very well aware that demolition operations of this character do excite a great deal in the way of anguish on the part of those who are the object of them but it must clearly be kept in mind, as the learned district judge stressed, that the protection of public officers carrying out their lawful duty is a matter of the utmost importance. It would be idle to suggest that we are not well aware that such operations are frequently attended with dangers to such public officers. So far as that side of the matter is concerned it can be said that the act was of a grave character. As to the decided cases cited to us by Mr. Cheung I need only say that they do not disturb the view that this particular sentence was within the tariff area. They also however do underline the fact that unfortunate familial and other background circumstances are circumstances proper to be regarded by the court where an act of this sort is done as a result of a sudden loss of temper. We have had a helpful and full probation report which indicates the unhappy background of this applicant. He suffered an injury in a motor accident at an early age which left him with one leg shorter than the other and it would appear that this injury has preyed upon his mind. In addition to that his low academic record at school has, according to the probation officer, induced in him a feeling of inferiority. There is in addition the fact of unhappy relations with his adoptive parents and, on the positive side, there is some indication that although he suffers from these character defects he has been on occasions a diligent worker in helping with his parents' business. 4. Without saying anything which would detract from what has already been said as to the gravity of this offence we think that in all circumstances not sufficient attention may have been paid to the miserable background of this applicant, taking it in the context of an occasion which was, as Grown counsel has candidly admitted, emotionally charged. For these reasons we think that it is proper to interfere. It has been represented to us, and we agree with the suggestion, that it is unfortunate that in this case treatment of a remedial character is not open in the way of training centre or detention centre treatment. A prison sentence is obviously necessitated by the gravity of the act but in all the circumstances we think that a sentence of eighteen months would have been the appropriate sentence and treating the application as the appeal we substitute that sentence for the three years imposed. Representation: P. Chan, instructed by (Ho & Wong) for appellant. G. Alderdice for Crown/respondent. |