Tang Yim Wah and Another v. The Queen

CACC000348/1976

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Coram: Huggins, J.A.

Date of Judgment: 27th April 1976.

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JUDGMENT

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1. The two Appellants pleaded Guilty to two charges. one of wounding and one of assault occasioning actual bodily harm. They were sentenced to two years' imprisonment on the first charge and one year's imprisonment consecutive on the second charge.

2. It is clear that the learned magistrate took a serious view of this attack by two young men, aged 17 and 18, and he imposed the maximum sentence which was available to him despite the pleas of Guilty. It is urged that that was wrong in principle and a case has been cited which tends to support that submission, but, with great respect, in my view that is not a good argument since there may well be a case which is tried by a magistrate but which the magistrate thinks ought not to have been tried by him and for which he would have given a heavier sentence if he had been also to do so. One must assume from what he has said that this is just such a case in the opinion of the magistrate.

3. The difficulty which I find in the case is that the more serious charge was still brought only under s.19 of the Offences against the Person Ordinance and that we do not have more than the briefest of reports from the doctors. In one instance the victim received what are described as "multiple chop wounds on the scalp, forearms, hip and thighs". That could be an extremely serious matter and it could be that the Appellants were fortunate they were not before the High Court on a charge of murder. Equally, it is possible that these chop wounds were only superficial. In my view in a case of this kind it is absolutely essential to have proper medical reports and without them both the court of trial and, on an appeal, the appellate court is in a position of great difficulty.

4. The circumstances of the case are that these two young men together with three others attacked, without any warning, a number of persons who were playing mahjong. They went to the house where this game was in progress, they knocked on the door and the man who opened the door was immediately chopped: the gang of five rushed in and succeeded in striking one of the other players, but the rest managed to escape.

5. It is said that this was one incident and that consecutive sentences were wrong. This is always a difficult question and in my view this is indeed a border-line case, but I incline to the view that it was justifiable to impose consecutive sentences. In a sense it was one transaction but equally it can be said that there was no need to attack everybody in the hut and, taking the case to an absurdity, one could visualise a gang attack in which fifty people were chopped. It seems to me that that would be a far more serious matter than if only one were chopped and it is legitimate, provided the total sentence is reasonable, to impose consecutive sentences.

6. Complaint is made that the learned magistrate did not ask for background reports. He could have done so and it might have been of some assistance to him. I have allowed affidavits to be put before me, but there is very little which they tell me which is of assistance. It is, however, material that the first Appellant did on one occasion render assistance to the police and was commended for so doing.

7. This was a triad attack, quite obviously. Both these Appellants have recent convictions for membership of a triad society.

8. The matter which causes me anxiety is whether on the information which is before the Court a total sentence of three years was justified and I am in the position that I can only say that it may well have been justified, but I am not satisfied that it was or that there was evidence before the magistrate which showed that it was justified. Certainly I trust that nothing which I say or do today will indicate that I do not consider gang attacks of any kind to be other than extremely serious, particularly at the present time, and I say that because several of the cases which have been cited to me are cases which took place several years ago. Although I have said that consecutive sentences were probably justified. the order which I shall make is that these appeals be allowed and that sentences of one year's imprisonment on each charge concurrent be substituted.

27th April 1976.

Representation: