Wong Kin-hong v. The Queen

CACC000261/1978

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

Date of Judgment: 14th September, 1978.

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JUDGMENT

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Yang, J. :

1. The Appellant pleaded guilty to one count of wounding with intent to do grievous bodily harm and was sentenced to life imprisonment. He now appeals against this sentence.

2. The facts of the case were simple. Both the Appellant and the victim were employed as cooks in a restaurant. There had been a history of ill will between the two men. On the 25th July 1977 they had a quarrel, during which, according to the facts outlined by crown counsel in the court below, there was "an element of taunting by the victim towards the accused", though it is not clear what form the taunting took, or how far it went. No doubt incensed by the victim's taunting, the Appellant struck the victim with a chopper, inflicting some eleven wounds of varying degrees of seriousness. It is true to say that this was an extremely vicious attack, and it was fortunate, both for the victim as well as for the Appellant that the victim, a man some 73 years of age, has made a full recovery.

3. The Appellant is 49 years of age. He has 18 previous convictions, two of which being for robberies with aggravation. In 1965 he was sentenced to 12 months' imprisonment for wounding with intent, and in 1973 he was sentenced to five years' imprisonment for manslaughter. We have been told that the 1965 wounding was committed whilst he was serving a term of imprisonment, and the offence was committed in revenge for injuries he had received from the victim on an earlier occasion. The 1973 manslaughter arose out of a dispute between the Appellant and the deceased over the distribution of work at a fish market. There was evidence before the jury in that case that immediately before the killing the Appellant had been attacked by the deceased and some other men. The Appellant was originally charged with murder but the jury returned an alternative verdict of manslaughter, possibly on the basis of provocation, but equally they could have come to the conclusion on some other ground.

4. The psychiatric report which was placed before the learned trial judge revealed that the Appellant was basically a primitive and impulsive person, but he was free from a form a mental illness. No psychotic features were present. It would appear that in 1975 when he was being detained in prison, he attempted suicide by hanging and set fire to his bed sheets. It was the psychiatrist's opinion that the Appellant's conduct in 1975 was only a situational reaction.

5. The learned trial judge dealt with the question of sentencing with the utmost care. Having recited the facts of the present case as well as the 1973 manslaughter (the facts of the 1965 wounding not having been disclosed to him), and having considered the psychiatrist's report, he came to the conclusion that the record of the Appellant "shows he is obviously disposed to violence and has scant regard for his fellow citizens," and that "he suffers from the inability to control himself when he is bad tempered and that he can lose his good temper for slight reasons."

6. The learned trial judge then referred to the three guidelines laid down in R. v. Hodgson ⁽¹⁾ where MacKenna, J. delivering the judgment of the Criminal Division of the Court of Appeal said (at p.114):-

"When the following conditions are satisfied, a sentence of life imprisonment is in our opinion justified: (1) where the offence or offences are in themselves grave enough to require a very long sentence: (2) where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future; and (3) where if the offences are committed the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence."

7. Hodgson's Case ⁽¹⁾ was followed in Fong Lun-fai v. R. ⁽²⁾.

8. Mr. Allman-Brown, counsel for the Appellant, has referred us to a line of authorities represented by R. v. Knight ⁽³⁾ where a life sentence was varied to a determinate sentence because there was no evidence of mental disease or abnormality on the part of the appellant (see also R. v. O'Connor ⁽⁴⁾).

9. It will not be necessary for us, in the particular circumstances of this case, to decide whether there is any conflict between Hodgson's Case and Knight's Case, or if there is, whether they are reconcilable. We shall content ourselves with saying that the Appellant, against whom there is no evidence of mental illness, does not appear to come within guideline (2) in Hodgson's Case. The Appellant's offences involving physical violence were separated by long gaps of time. The circumstances in which the offences were committed were not a sufficient indication that the Appellant was a man of unstable and violent character. It is a most difficult case, but we have come to the conclusion, not without some reluctance, that the background information about the offences and the Appellant is not sufficiently strong to warrant the conclusion reached by the learned trial judge.

10. The judgment of this court is that a determinate sentence should have been passed. We therefore allow the appeal and vary the life sentence to one of seven years' imprisonment.

11. In the circumstance it will not be necessary for us to deal with the second ground of the additional grounds of appeal, viz., that the Appellant is of a mentality that would prefer to have a fixed sentence of imprisonment.

Representation:

Mr. Allman-Brown (Director of Legal Aid) for Appellant.

Mr. Stoppa, Crown Counsel for Crown/Respondent.

(1) (1968) 52 Cr. App. Rep. 113.

(2) (1968) H.K.L.R. 249.

(3) (1967) 51 Cr. App. Rep. 466.

(4) (1960) Cr. L. Rev. 275.