The Queen v. Tai Pao-ti

CACC000306/1987

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. Kempster & Power, JJ.A. & Bewley, J.

Date of Hearing: 12th January 1988

Date of Judgment: 12th January 1988

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J U D G M E N T

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Power, J.A.:

1. The applicant faced the charge that she did on 18th February 1987 at Kowloon, Hong Kong, unlawfully and maliciously caused grievous bodily harm to CHIU Kwok-ying with intent to disfigure the said CHIU Kwok-ying. She pleaded not guilty to that charge and was after trial found guilty by District Judge Cameron and was sentenced to imprisonment for three years. She now seeks leave to appeal against that sentence.

2. The facts reveal that the victim was the wife of a Mr. Sheung a band leader and the applicant was his mistress. Having heard the evidence the trial judge was satisfied that:

"the defendant arrived at the home of PW1 on 18th February I beleived the account given by PW1 and not the account given by the defendant. PW1 had said that when she was attacked with the pole (P3) she caught hold of it and there was a struggle; that the defendant then took the razor blade (P4) from her pocket and slashed her face; that she grabbed the defendant's hair; that she was then slashed on her body. The defendant had said that after attacking PW1 with the pole PW1 snatched the pole and threw it to the ground; that PW1 grabbed her hair and held her head down; that she then took out the razor blade and slashed at random. Support for PW1's account came from the evidence of PW2 who stated that when he arrived on the scene he took both the pole (P3) and the razor blade (P4) from the defendant and from the fact that if as claimed by the defendant she had only produced the razor blade and used it after her hair had been grabbed and her head held down it seemed unlikely that PW1 would have sustained the injuries to her face that she did. The injuries to the waist of PW1 were consistent with the defendant slashing out when the defendant's head was being held down."

Those were the facts upon which the trial judge was satisfied to found his conviction. When it came to sentence he made the following observations:

"Whilst one can understand the frustrations of the defendant she was largely the author of her own misfortunes. She knew Sheung Heung-wing was married and it must have been abundantly clear to her that she could not have him to herself as she wanted. Nevertheless she continued with the relationship. As regards the attack with the razor blade although 1 was prepared to accept that it was an impulsive act of violence and not a premeditated act it was a serious one aimed initially at PW1's face."

3. Mr. Macrae who appears for the applicant has urged everything that can possibly be said in her favour. He relies particularly upon the observation which I have just read in which the trial judge said that he was prepared to accept that it was an impulsive act of violence and not a premeditated act. It is not altogether clear what he meant when making that observation other than that he must have accepted that the applicant used the razor blade to wound and disfigure the victim on the spur of the moment. Even so he, in our view quite properly, considered that the offence was a serious one which warranted a substantial sentence of imprisonment. The real question for the determination of this court is whether his assessment of three years was justified by the circumstances.

4. Having given consideration to all that has been urged on behalf of the applicant and to sentences imposed in the wounding cases which Mr. Macrae brought to our attention we are satisfied that the sentence of three years was not justified by the circumstances and that the proper sentence would have been one of two years imprisonment. We therefore give leave to the applicant to appeal against sentence, we treat the hearing of the application for leave as the hearing of the appeal and we substitute a sentence of two years for that which was originally imposed.

Representation:

Mr. I.G. Cross (Crown Prosecutor) for the Respondent

Mr. A. Macrae (D.L.A.) for the Applicant