Abdul Ghafoor v. The Queen

CACC000038/1978

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Coram: Trainor, J.

Date of Judgment: 31st January, 1978/

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JUDGMENT

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1. The appellant in this case was convicted on his plea of guilty in the Magistrate's court of maliciously wounding a colleague and was sentenced to two months' imprisonment.

2. The facts of the case were outlined to the learned magistrate in the court below, but it now transpires, from information I have received from Mr. Alderdice who appears for the Crown, that the facts outlined to the learned magistrate do not, in fact, appear to be correct. The true facts would appear to be that the appellant returned home at half-past-seven in the morning of the 19th November from his employment as a watchman, obviously he had been on night duty. He returned to a flat in which he lived with thirty other people who had at their disposal eighteen beds. It appears that by reason of working different hours the time of occupancy of a bed varied with the employment of the person entitled to it. When the appellant returned home he found that the complainant was in his, the appellant's, bed and as a result an altercation (not the other round as the magistrate was told) arose between them which developed, and ultimately the appellant picked up what was referred to as a small knife and cut the complainant.

3. In his reasons for the penalty he imposed the learned magistrate maid that the offence was serious one and of a type prevalent in Hong Kong, and, therefore, a custodial sentence was called for. He further said that there were no mitigating circumstances which justified the appellant's attack on the victim.

4. With regard to the latter observation that would have been a perfectly proper comment on the facts as outlined to the learned magistrate. The magistrate had been informed that it was the complainant who came home and found the appellant in his bed rather than the position being as I have earlier stated. Had the true position been brought to his attention it would, I believe, have been considered by him to be a considerable mitigating factor. Another matter that influenced the learned magistrate which in my opinion was somewhat exaggerated was when he said, that the offence is prevalent in Hong Kong.

5. The type of offence of which the appellant was convicted is not peculiar to or prevalent in Hong Kong as far as I know. The use of as knife is very prevalent in Hong Kong in a different context, but the use of a small knife in an altercation such as this is far from being an every day occurrence. In the cases that come before the court where knives are used in inflicting injuries the knife is almost invariably a large knife and the injuries are stabbings, as distinct from the cut that the complainant received, and are mostly used in furtherance of another offence.

6. The appellant is a person of hitherto impeccable character and stands to lose his licence to be a watchman if a term of imprisonment were to be imposed. I think it would be regrettable if a person who has held such a reputation for so long should find himself out of employment by reason of an outburst of temper. At the early hour of the morning in question at a time when he was, I am sure, very tired the circumstances were such as would, I think, make anyone irascible. In the circumstances I am going to deal with this case in such a way that the accused is released immediately and without recording a conviction.

7. The appeal therefore is allowed to the extent that the appellant be discharged on entering into a recognizance in the sum of $500 to come up for sentence within 12 months if called upon so to do. The conviction not to be recorded.

Representation:

Mr. Bokhary (Hoosenally & Co.) for appellant,

Mr. Alderdice, c.c. for Crown.