The Queen v. Mak Yun-kim
Read the full judgment text of DCCC 40/1974 on BabelCite. This District Court judgment was delivered on 10 April 1974.
1. In assessing sentence in this case I was guided by the decision of the Full Court in the case of Tam Fei v. R . (Criminal Appeal No. 433 of 1972, unreported), which is, of course, binding upon this court. In that case as in this there were extenuating circumstances, although they were not identical. All in all, however, it seemed to me that the differences between them almost, but not quite, balanced. Perusal of the record of the court of first instance confirmed the impression conveyed by th
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DCCC000040/1974 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT KOWLOON CRIMINAL JURISDICTION CASE NO. 40 OF 1974 -----------------
----------------- Coram: A.L. Leathlean, D.J. Date of Judgment: 10 April 1974 --------------------------------------------------- REASONS FOR SENTENCE --------------------------------------------------- 1. In assessing sentence in this case I was guided by the decision of the Full Court in the case of Tam Fei v. R. (Criminal Appeal No. 433 of 1972, unreported), which is, of course, binding upon this court. In that case as in this there were extenuating circumstances, although they were not identical. All in all, however, it seemed to me that the differences between them almost, but not quite, balanced. Perusal of the record of the court of first instance confirmed the impression conveyed by the judgment of the Full Court that the acid was thrown shortly after a quarrel between the appellant and the victim. In the persent case it was thrown in the course of a quarrel between the accused and the victim, and after the victim had bitten the accused's index fingernail through. In the Full Court case the victim's face and body were burned, whereas in this case it was the case for the Crown that only the victim's face was burned. On the whole, therefore, it seemed to me that the extenuating circumstances of this case outweighed those of the Full Court case. In arriving at that conclusion I did not overlook the facts that the victim in this case was a woman, whereas the victim in the Full Court case was a man, and that the victim in this case spent 6 days in hospital, whereas the victim in the Full Court case spent only 1 day in hospital. Furthermore, the accused in this case impressed me as being genuinely contrite. The accused having been in custody since January 15th, and in all the other circumstances to which I have referred. I sentenced the accused to 6 months' imprisonment. When I did so, however, I was under the impression that having regard to the time which he had already spent in custody that sentence would result in his being discharged from prison within a few days. Indeed, it was my intention in passing the sentence which I did that he should be released within a matter of days. It has since been brought to my attention that that impression was erroneous, and that he accused cannot be released from prison until July 1st. As, in passing sentence. I told the accused that he would be released within a matter of days, I have this day discussed the possibility of reviewing the sentence with the Deputy Director of Public Prosecutions. There is, of course, no statutory power for this court to review its decisions on the criminal side, and the Deputy Director of Public Prosecutions, after consulting the Director of Public Prosecutions, indicated, quite properly in my view, that should I be minded to review the sentence the Crown would wish to argue that I had no inherent jurisdiction to do so. In the circumstances I have caused the situation to be explained to the prisoner, who, in view of what I said in passing sentence, has not unnaturally queried the date of his release, and is almost certainly, and quite understandably, feeling aggrieved, and for him to be apprised of his rights to seek leave to appeal and bail pending appeal should such leave for be forthcoming. I have also explained the situation to Mrs. Pauline Cheung of the Legal Aid Department and to the solicitor who was assigned to represent the prisoner, who, I understand, has this day advised him as to the course which he should adopt. 2. This matter perhaps highlights the desirability of this court being given statutory power to review its decisions on the criminal side, a power which I understand has been conferred upon certain courts of criminal jurisdiction in England in fairly recent times, and which has long been conferred upon magistrates' courts in Hong Kong. 3. Dated this tenth day of April, 1974.
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