R. v. Hui Man Lee

CACC000399/1993

IN THE COURT OF APPEAL

1993, No. 399
(Criminal)

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Coram: Hon. silke, Ag. C.J., Penlington, J.A. & Sears J.

Date of hearing: 4 November 1993

Date of delivery of judgment: 4 November 1993

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J U D G M E N T

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Penlington, J.A.:

1. This is an application for leave to appeal against conviction and sentence by Judge Kilgour in the District Court on four charges of wounding with intent to cause grievous bodily harm, contrary to section 17 of the offences against the Person Ordinance. Two charges involved officers of the Buildings and Lands Department, the others were attacks on police officers who were escorting them.

2. The background circumstances of this somewhat sad matter was that the applicant and his family had been told they had to move out of their home in the Kowloon "Walled City". Applicant is aged 54 has four children aged 17, 15, 13 and 11. He had been offered compensation which, if he chose to buy a new flat under the home purchase scheme, would be some $200,000 but if he elected to rent a public housing flat he would only get $79,000. Like other people in these circumstances the applicant did not consider this offer was sufficient and apparently was trying to get the best of both worlds, that is the higher level of compensation plus a public housing flat.

3. Eventually on the 7th of April 1992 a large party of Buildings and Lands Department officers, together with a police escort, arrived at the applicant's home. He was told that the time had come when he had to vacate the flat and that the matter of compensation would continue to be discussed afterwards. The applicant refused to open the iron gate at the entrance of his flat and attempts were then made to force it open. When that was done the evidence given by the officers concerned was that the applicant rushed out from the gate armed with a chopper which he swung at them indiscriminately. In addition to the evidence of the officers there was also a video cameraman present and the events were recorded on tape. We did not consider it necessary to see the tape ourselves but accept the trial judge's finding that it shows the applicant brandishing a chopper furiously and striking out at anybody in his vicinity. The tape eventually stops because the cameraman saw that one of his friends had been injured and he went to help him. The undisputed medical evidence was that the victims in the first and second charges suffered lacerations of the arms or hands, the third and fourth linear lacerations of the hand or knee.

4. The applicant gave evidence and denied using a chopper at all. He said that while the person shown on the tape looked like him it must have been somebody else. From the tape, the injuries that were without any doubt suffered by the various victims and the evidence of the eye witnesses, we have no doubt whatever that the trial judge rightly found that the applicant inflicted the injuries to each of the victims and that in respect to the first, second and fourth counts the injured person had been attacked by the applicant with intent to cause grievous bodily harm. As far as the third charge was concerned the judge was in some doubt as whether that necessary intent was present and he convicted the applicant of the less serious charge of wounding, contrary to Section 19 of the Ordinance. The convictions were clearly correct and, indeed, inevitable on the evidence before the judge and the application for leave to appeal against conviction is refused.

5. The applicant also seeks leave to appeal against the sentences passed of 2 years' imprisonment on the first, second and fourth charges and 6 months on the third, all terms to be concurrent. The judge took a starting point as suggested in R. V. Lee Wing, [1988] 2 H.K.L.R. 227 where a fish hawker attacked a Housing Department officer with a melon knife, inflicting very serious injuries. This court said that in the case of an attack with a dangerous weapon on a public officer causing serious injury a starting point of four years' imprisonment was appropriate. We would reiterate again that anybody who attacks a public officer who is simply carrying out his duties, a task which is often unpleasant, can expect no sympathy from the courts. Here quite clearly emotions had become much inflamed and we have no doubt that the applicant had entirely lost control of himself. However that does not in any way justify an attack of this nature with a dangerous weapon on public officers. The injury inflicted in Lee Wing was very serious, including the loss of part of a finger and permanent loss of full use of one hand. Here the injuries were not so severe and the victims made full recovery without any permanent injury. There were however multiple offences. Had the applicant pleaded guilty to these charges and expressed real regret for his actions no doubt a more lenient view could have been taken. Even now however there is no such expression of regret for this vicious attack. The applicant has said that his health is poor and he wishes to have his sentence reduced so that he could return to look after his family. This was supported by his wife who was present and who we permitted to address the court. However taking into account that this incident involved multiple offences against officials simply carrying out their duties we do not consider that the total sentence of 2 years' imprisonment imposed can in any way be said to be excessive and there is nothing in the applicant's personal circumstance to call for our intervention. The application for leave to appeal against the sentences is also refused.

Representation:

HUI Man-lee, applicant - in person

Mr. C. Coghlam, S.C.C. for Crown