Lam Man Yung v. The Queen

CACC000318/1968

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 318 OF 1968

(South Kowloon Magistracy Case No.8227 of 1968)

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Coram: Pickering J.

Date of Judgment: 16 July 1968

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JUDGMENT

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1. The appellant pleaded guilty to the charge of wounding contrary to Section 19 of the Offences Against The Person Ordinance (Cap.212). The particulars of the charge alleged that on the 9th of May in Kowloon she unlawfully and maliciously wounded Lee Hoi Lun.

2. Both the appellant and her victim, Lee Hoi Lun, were bar girls working in different bars in the Tsimshatsui area. They had at one time worked in the same bar where bad feeling had developed between them resulting in an actual fight in which both were hurt. Shortly after that incident there was another physical conflict between them in which the appellant was injured although apparently not seriously.

3. At approximately twenty past four on the 9th of May of this year both girls were sitting in the waiting room of the Jockey Club Polyclinic in Reclamation Street awaiting routine medical checks when the appellant challenged Lee Hoi Lun to a fight. Upon the latter declining the challenge, the appellant left the waiting room and some five minutes later when Lee Hoi Lun was walking up the stairs in the clinic she was intercepted by the appellant who again challenged her to fight saying that she wanted revenge and wanted to slash Miss Lee's face. At this Miss Lee retreated one step downwards but in doing so had her face slashed by the appellant with an object which was later found to be a razor-blade. The appellant then ran up the staircase and escaped. Miss Lee was given first aid and medical care in the clinic and was subsequently sent to Queen Elizabeth Hospital where she was detained until the 12th of May. Her injuries consisted of a one inch long oblique cut in the medial end of the left eyebrow and upper eye lid which continued into a cut two and a half inches long extending from the medial angle of the left eye down to the cheek, the underlying muscles also being cut.

4. At ten minutes before midnight on the date of the attack the appellant reported to the C.I.D. at Yaumati Police Station telling the investigating officer that she had used a razor-blade to slash Lee Hoi Lun and had thrown the blade away afterwards. The appellant admitted that a blade subsequently recovered was the blade she had used.

5. In sentencing the appellant to two years' imprisonment the learned trial Magistrate said that he had considered all the matters before him and in particular the defendant's age, the unprovoked vicious attack and the waylaying of the victim, the dreadful injury the victim had suffered and the use of a razor-blade to attack a young girl's face. The learned Magistrate said that he bore in mind also the fact that the appellant had pleaded guilty but as to her giving herself up to the police, he expressed the view that she may well have felt that in doing so she was only anticipating her apprehension. He described her as mature in experience and the ways of the world and as old in everything except years. The trial Magistrate considered that what was required was punishment and not reformatory treatment and that prison was the proper and the only proper course. He examined the wound on the face of the victim and obtained a probation report on the appellant.

6. There was some conflict as to the appellant's age and the facts as to her age contained in the probation report were contradictory in themselves. The appellant has no papers to prove her age and the assertion in the probation report that her date of birth was the 28th of March 1953 does not reveal its source and is contradicted by the further assertion in the same report that she was nine years old when she first came to Hong Kong in 1961. This latter suggestion conflicts with information contained in an exit permit from China dated the 9th of November 1961 showing the appellant's age at that time as seven, a statement which, if correct, would mean that she is now fourteen years old. The learned Magistrate, relying on the case of Wallwork v. Balmar referred to in the 1966 Criminal Law Review at page 42, where it was held that evidence of age could be provided by the magistrate seeing certain youths for himself and reaching a conclusion on their apparent age, found the age of the appellant to be not less than 16 years. My own close view of the appellant in court and outside the dock in no way leads me to question that opinion. Accepting, in accordance with the principle of Benmax v. Austin Motor Co. Ltd.⁽¹⁾ that an appellate court, in circumstances in which there is no question of the credibility of a witness but the sole question is the proper inference to be drawn from specific facts, is in as good a position to evaluate the evidence as the trial judge and should form its own independent opinion whilst giving weight to that of the trial judge, such independent evaluation does not lead me to differ from the conclusion of the trial Magistrate.

7. Leading counsel for the appellant based his argument first upon the suggestion that she is in fact under sixteen and should have been treated as a juvenile and in the alternative that even if the appellant is sixteen or more any sentence of imprisonment was in the circumstances unreasonable.

8. I have sufficiently indicated my view of the suggestion that the Magistrate was wrong in finding the appellant to be not younger than sixteen for it to be apparent that nothing in this appeal can turn on that question. It is perhaps pertinent to observe that even if the appellant had been found to be a "young person" as defined in Section 2 of the Juvenile Offenders Ordinance (Cap.226) that is a person who is, in the opinion of the court, fourteen years of age or upwards and under the age of sixteen years, it would still have been open to the Magistrate to have sentenced the appellant to prison under Section 11(2) of the same ordinance if he were satisfied that she could not be suitably dealt with in any other way. In this connection it must be recalled that the learned Magistrate was of the view that prison was "the proper and only proper course" and that the appellant required punishment and not reformatory treatment.

9. Turning to the suggestion that any sentence of imprisonment is unreasonable even if the appellant's age is accepted to be sixteen or more, counsel said that when sentencing the appellant, the learned Magistrate referred to "the dreadful injury" which the victim had suffered and observed further, in his Statement of Findings, that the appellant had left the victim "unsightly". Counsel appeared to criticise this terminology because of the absence of any medical evidence as opposed to a medical report which admittedly did not use these terms. I can only observe, having had the same opportunity as had the Magistrate of inspecting the face of the victim when she approached the bench for that purpose, that in my view it does not require medical evidence to justify the words "dreadful injury" or "left unsightly". There is no evidence that the Magistrate allowed himself to be influenced by a remark of the prosecuting inspector who claimed to have spoken to the doctor and to have it from the doctor that the scar and disfiguration was permanent. That is no doubt a matter for medical evidence but, whilst there is nothing to suggest that the Magistrate took into account this hearsay remark, it is perhaps permissible to observe that following a view of the injury done to this girl, a layman would be surprised if the disfiguration did not prove permanent unless plastic surgery is at some time employed.

10. In urging that probation would have been the most suitable course that the Magistrate could have adopted, counsel argued that the probation officer had said that she would accept the appellant upon probation. With the greatest respect to counsel this argument puts something of a gloss upon the probation officer's views for she was in fact averse to undertaking the supervision of the appellant. After commenting that the appellant had displayed little sense of regret in regard to the offence and could not admit the seriousness of the injury done, the report went on:-

"Taking all this into consideration, defendant seemed to need punishment before she could realise the difference between right and wrong and to be able to see the seriousness of her impulsive aggression. Since she did not seem sincerely motivated to reform, I do not think she would respond to probation supervision and do not propose to suggest it. I would, however, not object to taking up supervision should Your Worship deem it necessary for defendant's rehabilitation."

11. Thus there was at best a grudging preparedness to supervise the appellant under a probation order in the event of the court rejecting the probation officer's primary view that the appellant was unlikely to respond to probation treatment.

12. In further support of his argument that any sentence of imprisonment was unreasonable, counsel cited various Hong Kong cases beginning with that of Shum Kin Wah v. R.⁽²⁾ where Rigby, S.P.J. said:

"It is almost inevitable that different constituted courts may take different views as to the proper sentence to be imposed in any given case. As is apparent from any perusal of the reports emanating from the Court of Criminal Appeal in England that is a difference of opinion which is by no means confined to the courts of this Colony. Nor is it any longer apparent from a consideration of these cases that the sole test to be applied by an appellate court in deciding whether or not to interfere with a sentence is whether or not such a sentence is manifestly excessive or inadequate or obviously wrong in principle. It would seem far more self-evident from the contents of those cases that the test now applied is that the appellate court considers in each case the sentence imposed in all its aspects, together with all the facts and circumstances of the case, the prevalence or otherwise of that particular type of offence, the character, the background and future of the offender himself and decides whether or not the sentence imposed was in fact a proper one."

13. The learned Judge did not cite any of the English cases upon which he relied for the proposition contained in the last above quoted sentence and perhaps the greatest relevance of the Shum Kim Wah⁽²⁾ case to the present case is that he went on to say:-

"But I am certainly not prepared to say - nor indeed do I consider it would be right to say that the sentence of imprisonment, as such, was in any way cither wrong in principle or inappropriate in this case."

The learned Judge was however of the opinion that the sentence was excessive and proceeded to reduce it.

14. The case of Lo Yu Bun v.R.⁽³⁾ was cited by counsel as authority for the proposition that imprisonment should not be imposed unless it is clear that no other method of dealing with the offender, or the offence, is appropriate. That case concerned illegal immigration and the distinction between it and the present case is that in the Lo Yu Bun⁽³⁾ case, the court considered the offence was not one which involved any moral turpitude. That is not a view which can conceivably be applied to the facts of the present case in respect of which the Magistrate considered that a sentence of imprisonment was "the proper and the only proper" course.

15. The learned Magistrate considered that the case was one which called for an example to be made of the accused despite her youth and referred to the case of R. v. Kent⁽⁴⁾ where the Court of Criminal Appeal considered that in the case of a 17-year old youth who had used an air-pistol to resist arrest the predominant consideration was not the welfare of the accused it being one of the class of cases where an example had to be made. The Magistrate also referred to R. v. Stewart⁽⁵⁾ where the Court of Criminal Appeal upheld a sentence of three year's imprisonment imposed upon a boy of 16 years of age for beating up two elderly women in a sub-post office with a hammer. The Court upheld the sentence despite the fact that it accepted the view that the appellant would be unlikely to commit a similar offence again. In the case of R. v. Higo⁽⁶⁾ to which the Magistrate also made reference, Lord Parker, C.J. said in dismissing the appeal of a youth of 18 with no previous convictions who had been sentenced to four years' imprisonment for armed robbery:

"... this court will accept that this young man is not a criminal in the real sense and that it might be in his best interest that he should have a long period of supervision and nothing more but one has only got to state the nature of the offence to realise that this is not a case where the boy's own personal interest weighs heavily in the scale as to what should be done. This is a case where a deterrent sentence is called for in the public interest."

16. I see no reason for holding that the principle applied in those cases is inapplicable in regard to the present offence involving a vicious wounding which could only have been accompanied by a clear intent to disfigure and in respect of which the appellant has neither shown nor expressed remorse. Like the learned Judge in Shum Kin Wah v. R.⁽²⁾ I am not prepared to say that a sentence of imprisonment, as such, was either wrong in principle or inappropriate in this case.

17. There exists in Hong Kong a genuine difficulty in sentencing teenage girls in respect of serious offences, especially where the probation authorities are of the opinion that probation is unsuitable. Unlike her male counterpart, such a girl cannot be sent to a training centre for no such institutions exist for girls in the Colony. The practicable alternatives in the present case were either probation, the imposition of a fine or a combination of both these sanctions and the learned Magistrate was clearly of the opinion that none of these alternatives was adequate.

18. I have however some reservations as to the length of the two-year sentence imposed. This was the maximum sentence open to the Magistrate who, in sentencing the appellant, said that he had thought over all the matters before him and in particular the appellant's age. He also referred to the fact that she had pleaded guilty. Neither her age nor her plea of guilty however found any reflection in the maximum sentence which the Magistrate imposed, It is true that on indictment the appellant could have been sentenced to three year's imprisonment for this offence but she was not indicted: she was tried summarily and in those circumstances as it appears to me, if a Magistrate takes into account mitigating circumstances he should weigh them, not against the maximum sentence which could have been imposed upon indictment, but against the maximum sentence open to him. This the learned Magistrate, whose approach to the question of imprisonment or otherwise was characteristically careful, failed to do. As her counsel pertinently observed, had the appellant been a forty-year-old man with a record of previous convictions for violence she could not have found herself in any worse position in regard to sentence than that in which she is now placed.

19. Having regard to the matters which the Magistrate appears to have failed to reflect in his sentence, that is the appellant's youth and her plea of guilty, I would allow the appeal to the extent that the sentence will be reduced from two years' imprisonment to one year's imprisonment.

16th July, 1968.

Representation:

B. Bernacchi Q.C. & M. Asome (Peter Mark & Co.) for Appellant.

Alexander, C.C. for Respondent.

(1) (1965) 1 A.E. 326

(2) (1967) H.K.L.R. p.140

(3) (1962) H.K.L.R. 312

(4) unreported but referred to at (1959) C.L.R. 468.

(5) unreported but referred to at (1961) C.L.R. 844.

(6) Unreported but referred to at (1965) C.L.R. 150