The Queen v. Lam Kwan-lun

CACC000013/1985

IN THE COURT OF APPEAL

BETWEEN

THE QUEEN

and

LAM KWAN-LUN

Coram: Li, V.-P. & Barker, J.A.

Date of Hearing: 2nd May 1985

Date of Judgment: 2nd May 1985

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JUDGMENT

___________

Li, V.-P.

1. This is an application for leave to appeal against sentence out of time. The applicant was originally charged with wounding with intent to do grievous bodily harm. When he was on trial on the 23rd of November last year, the charge was amended in all humanity to one of simple wounding to which the applicant pleaded guilty.

2. The facts giving rise to this offence were tragic. The applicant and the victim were not on good terms. They were neighbours living opposite one another on a floor of a housing estate. The victim himself was a known bad element and had been bullying the applicant for years.

3. On the day in question the applicant was returning home when he was accosted by the victim with abusive language and an indecent gesture. The applicant was so annoyed that he went to his room, took out a chopper in order to deter the advance of the victim. The victim was undeterred. There was a struggle. The victim fell down. The applicant lost control of himself and chopped him. There were some quite serious injuries suffered by the victim. But reading the whole history of the case one could not help feeling that the victim was asking for trouble.

4. The probation officer found that the applicant had complained of the disturbance he received from the victim to the authority of the housing estate concerned. Unfortunately, the proper authority did not take his complaint seriously. Speaking for myself, I cannot help feeling that this lack of imagination and lack of consideration on the part of the staff of that housing estate is partly responsible for this unhappy event. If only they could treat the residents of the housing estate as tenants from whom they received rent rather than as recipients of charity, they would have done something sooner. Be that as it may, the applicant received a very good probation report. All his other neighbours and friends had nothing but good to say on his behalf. He is 63 years of age. He is a literary man. He contributes articles to magazines and newspapers to earn his living. Since this case occurred the housing authority, at last, has transferred him to a different block on a different floor from that of the victim, albeit in the same housing estate.

5. The probation officer in his report said that:

"Considering the extenuating circumstances under which the present offence was committed and his past behaviour, the undersigned feels that the Accused may deserve a more lenient sentence. As the Accused lives alone here, probation supervision may be halpful to look into his emotional as well as physical needs."

6. The judge having considered the probation report passed a sentence of 6 months. We make haste to say that in normal circumstances a 6 months sentence is a very lenient sentence in a case of this nature. However, we feel that this is a very exceptional case. We have regard to the past conduct of the applicant, his way of life and what was said of him by his neighbours and friends, we feel that we can be lenient. We take into consideration of the remark made by the probation officer that although the applicant does not require close supervision, he lives by himself and is a lonely man. A visit from the probation officer from time to time for a short period would be of benefit to him.

7. For these reasons we grant leave to appeal against sencence out of time. We treat the application as the appeal itself. We allow the appeal. The sentence of 6 months is set aside and in substitution therefor, we impose a probation order for 1 year.

Representation:

Mr. A.A. Souyave (D.L.A.) for applicant

Mr. Boucant, Crown/respondent