HKSAR v. Ho Kwan

HCMA000968/1998

HCMA 968/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 968 OF 1998

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Coram: Deputy Judge Jackson in Court

Date of Hearing: 6 January 1999

Date of Delivery of Judgment: 6 January 1999

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J U D G M E N T

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1. This is an appeal against sentence of 12 months' imprisonment imposed upon the appellant on 23rd September 1998 following his plea of guilty to an offence of wounding contrary to section 19 of Chapter 212.

2. The facts of the offence were that both the appellant and the victim of the wounding were inmates at Hei Ling Chau Correctional Institution. Whilst at work they had on argument about some cigarettes and the appellant picked up a pair of scissors and attacked the victim several times with these scissors. The attack resulted in the victim receiving the following injuries:-

1. A deep laceration of the right cheek of about 3.5 centimetres and requiring 3 stitches

2. Multiple superficial lacerations and

3. Abrasions of 3 to 5 centimetres on the legs and 2 shallow lacerations of the scalp.

3. The grounds of appeal advanced on behalf of the appellant were as follows:

1. That the Magistrate wrongly held that it was a deliberate act of wounding

2. That the Magistrate erred in holding that it was an aggrevating feature that the attack occurred inside a prison

3. That the Magistrate failed to apply the totality principle correctly and

4. That the Magistrate, in ordering that the sentence of imprisonment should be served consecutively to the sentence which he was then serving, was in error.

4. Grounds 3 and 4 appear to me to amount to the same argument in relation to totality. Clearly it cannot be said that it was wrong in principle for the learned Magistrate to have ordered the sentence for the wounding to be served consecutive to the sentence which the appellant was then serving.

5. I deal with the grounds of appeal as follows:

1. The learned Magistrate was not wrong to hold that this was a deliberate act of wounding. That is precisely what it was, and the appellant's plea of guilty acknowledged that to be the case. This ground of appeal fails.

2. What the learned Magistrate in fact said in his Reasons for Sentence was - and I quote:

"In sentencing the defendant I took into account the facts and nature of the charge. This was a serious act of violence in which a dangerous weapon was used repeatedly to attack the victim. The fact that this was an attack within the confines of a prison was an aggrevating feature in my opinion. It is well accepted that the Correctional Services Department have to rely to a large extent on the forbearance and co-operation of prisoners in order to maintain discipline within the prisons. This sort of conduct is the more serious because it can escalate to a full scale riot if friends and supporters of the parties involved decide to join in. Therefore the court must weigh these factors in assessing the correct sentence. Given the type of weapon used it was fortunate that the injuries were not even more serious."

I respectfully agree. This ground of appeal fails.

3. On the question of the totality principle, what in fact the learned Magistrate said was - and again I quote:

"Having regard to the principle of totality of sentence I noted that this was a separate and additional serious crime committed in circumstances removed from the original crime and ruled that it should be served consecutively to the existing sentence and that this in no way offended against the totality of sentence principle."

Again I respectfully agree with all of that and it must follow that grounds 3 and 4 of the appeal must also fail.

6. I might just add that given the circumstances of this case in which scissors were repeatedly used to wound another person about the face and elsewhere it is my view that the appellant was dealt with leniently by the learned Magistrate.

7. It follows from all that I have said that this appeal must be dismissed.

Representation:

Mr. Simon Tam, SGC for HKSAR/DPP.

Mr. Wong Hay-Yiu, instructed by DLA for the Appellant.