Mak Yun Kim v. The Queen

CACC000261/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 261 OF 1974.

Coram: Briggs, C.J. and McMullin, J.

Date of Judgment: 27th April, 1974.

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JUDGMENT

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1. The appellant pleaded guilty to throwing corrosive fluid, namely, hydrochloric acid at one NGAN Yuet-mei. He was sentenced to six months' imprisonment on the 8th April, 1974 and he was ordered to be bound over in the sum of $800 for one year. He appeals against his sentence.

2. There were two grounds of appeal, one, that the sentence was excessive in the circumstances and, two, that when the sentence was passed it was passed in error.

3. We do not think that the appellant can succeed on the first ground. The victim in this case had been living with the appellant as his wife and had borne him two sons. However, she left him in order to pursue her former occupation as a dance hostess. Consequently, the couple frequently quarrelled. During one of these quarrels the victim bit the finger of the appellant causing him considerable pain and in a fit of temper he splashed her with hydrochloric acid causing burns to her right cheek and round her right eye. It must be stated that the hydrochloric acid was not brought there for this purpose, it was used as part of the business of the appellant. We do not think, although there was considerable provocation, that the sentence passed by the District Judge was excessive.

4. As to the second ground, the court was told that when the District Judge passed the sentence in this case he told the appellant that he would be released in the middle of the month of April. The District Judge proceeded to pass a sentence of six months as we have said. This would not allow for the release of the appellant in mid-April. He will not be released until the month of July. As the District Judge made his intentions known to the appellant it is not suprrising that the appellant has appealed against that sentence, a sentence which he expected to have expired by now.

5. We think that in the circumstances the appeal should be allowed. The sentence of six months' imprisonment is quashed and there will be substituted therefor such a sentence of imprisonment as will allow the immediate release of the appellant. The order for the rest of the sentence passed by the District Judge will remain, namely, that the appellant is bound over in the sum of $800 for one year to be of good behaviour and keep the peace especially towards NGAN Yuet-mei.

Representation:

Sparrow (HASTINGS & Co.) assigned for Appellant.

Macdougall, D.D.P.P. for Crown/Respondent.