Attorney General v. Li Pung-leung and Another

CAAR000017/1986

IN THE COURT OF APPEAL

BETWEEN

Coram: Hon. Li, V.-P., Yang J.A. & Power, J.

Date of Hearing: 24th October 1986

Date of Judgment: 24th October 1986

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JUDGMENT

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Li, V.-P.:

1. This is the Attorney General's application for review. The two respondents Li Fung-leung and  So Sai-kee were convicted of wounding with intent to do grievous bodily harm. In the event Li Fung-leung, the first respondent, was sentenced to one year's imprisonment and the second respondent So Sai-kee to a detention centre.

2. The Attorney General applied for a review of the sentences on the grounds that the sentence on Lee was manifestly inadequate, and that on So, was not only manifestly inadequate but also wrong in principle. The Attorney General said it was wrong because the learned trial judge took into account that the case occurred in 1981 but the proceedings were not commenced until 1985.

3. The charge was that these two of them together with others wounded one Wong Wai-ling with intent to do her grievous bodily harm on 22nd September 1981. The evidence of the prosecution was that Wong, the woman, cohabited with the 1st respondent. She had an affair with another person, and left the 1st respondent for a while. The 1st respondent was upset. There was an arrangement between the 1st respondent and Wong as well as her man to meet some time in the evening on 22nd September 1981.

4. Both Respondents were at that meeting with their friends. On the other hand, Wong was with her man, accompanied by his group of men. They were there to talk things over. When they were near the entrance of No. 50 Yan Ping Road where the 1st respondent and Wong used to live together, the 1st respondent asked Wong to go up to their former house to talk things over with his group of girls. Wong declined. There was an argument. The lst respondent said that that was entirely an affair between the two of them. Wong persisted in her refusal. As a result the 1st respondent shouted some words, whereupon the 2nd respondent attacked Wong. The respondents' friends joined in.

5. Wong suffered a penetrating sound in the lower abdomen, four superficial laceration wound on her back and one superficial laceration on her face and 1 laceration on her abdominal wall.

6. Despite this injury she was grabbed and dragged upstairs by the 1st respondent to their home. He warned Wong's boy-friend Lam not to interfere with them anymore. Eventually 1st respondent took Wong to Tang Shiu Kin Hospital. On their way he induced her to tell a false story that she was injured in the course of a robbery. She was later transferred to the Queen Mary Hospital where she received surgical treatment. She was then taken to another hospital for convalescence.

7. In his Reasons for Sentence the judge said that it was not exactly a Romeo and Juliet type of fighting. With that I cannot agree more. There were migitgating factors. The first of which was the respondents' young age. The second was that this case happened five years before the conviction, so at that time of the offence they were even younger. He said:

In particular the fact that the offence was committed when you 2 were much younger 5 years ago.

I do not interprete that the judge as commenting on the delay of the proceedings. Hence, the judge imposed a sentence of one year imprisonment in respect of the 1st respondent and a detention order in respect of the 2nd respondent.

8. He did so after he had obtained the probation officer's report and that of the in-take officer of the Correctional Services Department in respect of both respondents. I shall not repeat the contents of these reports. Suffice it to say that the usual pattern revealed the sort of hardworking and indulgent parents, lack of supervision and mixing with undesirable friends. The 1st respondent was married. He had extra marital affairs. He lived with Wong who was not his wife. When Wong deserted him for another man, he asked for separation fees.

9. We cannot say that Wong did not ask for the trouble herself by mixing up with such a character. At the time of the offence that the 1st respondent was 22 years old and the 2nd was 17.

10. We take all these factors into consideration. Having read the probation officer's report and the intake officer's report we have come to the conclusion that the sentence was manifestly inadequate and wrong in principle. For a serious offence of this nature there has already been a warning of heavy punishment in the case of Chan Chi-wai ⁽¹⁾. This Court warned that an attack of such nature would merit a period of 3 years. A further warning was given that it would not be surprising if corporal punishment were imposed. In this connection we have also considered the case of delay in proceedings. We are informed that the 1st respondent had, at one time, intended to appeal against conviction. Because of the short sentence he abandoned his application against conviction. We are also told by counsel that on 4th August the 1st Respondent was told by a judge, who entertained his application for bail, that his appeal against conviction would be heard within three weeks. By the middle of September he heard nothing. He lost faith and abandoned his application for appeal against conviction.

11. The fact is that he is convicted of a very serious offence. Normally had he been sentenced in 1981-82 he would merit a sentence of 4 years. As far as the 2nd respondent is concerned because of his age and his secondary role he would have been sentenced to about 2 to 2½ years. Since there had been some delay in this matter setting down his appeal and that this is an application for review we give a further discount. We allow the application, we review the sentence. The sentence is reviewed to such an extent that the 1st respondent will go to prison for 3 years and the 2nd respondent would go to prison for 1 year.

(1)    Application for Review No. 17 of 1983

Representation:

Mr. Bruce for Crown/Applicant

Mr. C. Young (William Au & Co.) for Dl

Mr. Percy (D.L.A.) for D2