The Queen v. Cheung Yuen Hing

CACC000273/1985

IN THE COURT OF APPEAL

BETWEEN

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Coram: Cons, Silke, JJ. A. & Mantell, J.

Date Of hearing: 29th August 1985.

Date of judgment: 29th August 1985

Date of resumed hearing: 2nd September 1985

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JUDGMENT

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Silke, J. A.:

1. The applicant was convicted, after trial in the District Court, of an offence contrary to section 17 of the Offences against the Person Ordinance in that he unlawfully and maliciously wounded Leung Cheung Kee with intent to do him grievous bodily harm.

2. He had originally sought leave to appeal against both his conviction and sentence. Today, on advice from Mr. Macrae who appears for him in this Court, he has abandoned his application in respect of conviction.  We are, therefore, dealing only with the sentence.

3. The background to the offence is this. Some time after midnight on the 15th December 1984, a taxi-driver had taken a fare to the Yuen Chau Kok Temporary Housing Area.  On arrival there an argument developed between the driver and his fare. Both sides called for reinforcements.  The taxi-driver calling for them by radio and the fare calling upon two friends of his who were close by. There was a fight. The police arrived. The passenger and his two friends disappeared into the Temporary Housing Area. The police and the taxi-drivers went there to try to find them but without success. Ten more taxi-drivers arrived a little later having also been summoned by radio. One of those was Mr. Leung Cheung Kee. When they arrived five residents of the Temporary Housing Area came up and there was again an argument between the two opposing sides. This developed into another fight. In the course of that fight, iron bars, iron poles and water pipes were used. The applicant had been seen as one of those five men who had come up, he was involved in the fight. He had been first seen with his hands behind his back but it became apparent shortly afterwards that he was holding a weapon and he inflicted the wounds upon Mr. Leung. There were also two other persons who hit Mr. Leung.

4. The injuries which Mr. Leung received were: a 5 cm long deep laceration on the right side of his scalp; a 7 cm long deep laceration on the front of his scalp; he had superficial abrasions on his right index finger and two bruises at his back. He was taken to hospital where he arrived about half past two in the morning of the 15th, the lacerations were sutured and lie was discharged on the 16th December.

5. The sentence passed by the trial judge was one of 2½ years imprisonment.  The applicant had a clear record, which is much to his credit given that he lives in an area apparently prone to violence. There was a favourable Probation Report before the trial judge. The injuries while unpleasant were not of the most serious kind.  Luckily for the applicant. They could have been considerably worse.

6. We have been referred to the Reasons for Sentence in which the trial judge said that the matter was planned and further, offences of this nature are all too common and on the increase.  However, no evidence of this increase appears to have been before the trial judge.

7. People are far too quick to take up weapons to injure others. But each case must relate to its own particular facts. Here, there was an altercation between the two parties and we have been informed that, as the incident concluded and one of the Temporary Housing Area participants was being held by the police - that person being the man who had declared himself to be a triad and - who was apparently the leader of the Housing Area group - was struck on the face by one of the taxi-drivers from which blow he subsequently died. The taxi-driver was charged with common assault and, on conviction, sentenced to four months imprisonment, that imprisonment being suspended for twelve months. While from a legal point of view that charge and sentence cannot be faulted, it is nevertheless not difficult to understand the feelings of the applicant upon receipt of a long sentence of imprisonment.

8. A prison sentence is, of course the proper sentence for an offence of the nature of which the applicant has been convicted. But that having been said, he has now spent some time in prison. He had had a very good record prior to this offence.  He has a wife and family, with a harmonious family relationship, a reasonable job and gets on well generally with those who live in the area in which he lives and works. He is impulsive and it is possible that his impulsiveness has drawn him into the commission of this offence. We think that he can lay claim before us now to have those matters considered and borne in mind.

9. We take a sentence of 18 months imprisonment to be proper for offences of this kind, but in the light of the period which the applicant has already spent in prison and because of the matters to which we have referred and to which he can now lay claim, we feel we are entitled to take the unusual course of suspending the imprisonment. We would therefore grant the application, treat the hearing of the application as the hearing of the appeal and allow the appeal. We quash the sentence of 2½ years imprisonment and substitute therefor one of 18 months imprisonment. That sentence will be suspended for a period of three years. The applicant should be aware that this means if he is convicted of any offence punishable by imprisonment during the period of suspension that he can be brought back and sentenced not only for the offence he commits but also to have the sentence imposed upon him of 18 months activated.

2nd September 1985

10. Subsequent to this decision it was drawn to the Court's attention that the suspension was wrong, section 17 offences being excepted ones under the provision of section 109B of the Criminal Procedure Ordinance read with the Third Schedule to that Ordinance. The Court therefore recalled the application for further consideration. While maintaining the correctness of the prison sentence as the general rule, we felt that, in all the circumstances as they then stood, the only appropriate course to take was to impose such sentence as would allow the applicant to be released from prison forthwith.

Representation:

A. Macrae, Esq. (R. J. Oliver) for Applicant.

G. Jackson, Esq. for Crown/Respondent.