Wong Kai Ming v. The Queen

CACC000295/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 295 OF 1971

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Coram: Huggins, J.

Date of Judgment: 8th June, 1971.

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JUDGMENT

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1. The Appellant pleaded guilty to unlawful wounding and was sentenced to 4 months' imprisonment. The circumstances were that he and the victim live opposite one another across what is apparently a narrow street and that the victim was seen to make a grossly indecent gesture to the Appellant's wife, both parties being in their own premises. The Appellant then went to the victim's premises and asked for an explanation. A quarrel ensued, though exactly how heated that quarrel was is not very clear. The victim endeavoured to break off the quarrel by showing the Appellant to the door. As he went to the door to open it and had his back to the Appellant the Appellant drew out a hammer which he had concealed about him and struck the victim on the head. It was by no means a light blow, because it caused a depressed fracture of the skull and a laceration 2 inches long. The victim was detained for four days in hospital and then discharged to a convalescent home.

2. The Appellant is a man of 44 years of age and has a clean record. After his conviction counsel applied on his behalf for bail pending appeal and bail was granted, weight no doubt being given by the learned Magistrate to the argument that the term of 4 months' imprisonment would have been served to a large extent before the appeal came on for hearing. I will deal straight away with the suggestion that this granting of bail has some bearing upon the result of the appeal. Counsel, in my view correctly, suggested that some of the decisions dealing with this point are illogical and I have no doubt in my mind that very little weight should he attached to this argument. The application for bail was on the motion of the Appellant himself and if he chooses to apply for bail - as he is perfectly entitled to do - he is not thereby entitled to any benefit upon his appeal. I do not say that it can never have any relevance, for I can conceive of a case where the appellate court is in two minds whether to affirm a sentence of imprisonment, and in such a case the fact that bail has been granted might just tip the scales in favour of the appellant. In my view it was such an exceptional case that the Court of Appeal had in mind in Reg. v. Cullis⁽¹⁾.

3. In the present case the learned Magistrate was of opinion that the sentence of imprisonment was appropriate because of the premeditation which, he was satisfied, was involved in the offence. This was not a case where, in the course of a quarrel, the Appellant picked up a weapon in the victim's house. He had gone armed. This clearly indicates that it was a case of "satisfaction or else ......" . He did not get satisfaction and he thereupon struck the victim. Had there been no provocation I myself would have thought that this sentence was not heavy enough and I am quite unable to say that the learned Magistrate was wrong to take the view that he did. Too many prople are disposed to take the law into their own hands and to resort to violence. Giving every weight to the arguments which have been advanced on behalf of the Appellant, I find no alternative but to dismiss this appeal.

8th June, 1971.

Representation:

(1) 1969 1 All...(illegible) .E.R 593.