Chau Chi-ming v. The Queen

CACC000412/1977

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Coram: Huggins and Pickering, JJ.A. and McMullin, J.

Date of Judgment: 17th August, 1977.

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JUDGMENT

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Huggins, J.A.:

1. The Appellant seeks leave to appeal against his conviction and sentence on a charge of wounding with intent. The sentence was one of three years' imprisonment.

2. On the day before the alleged offence there was a dispute between the victim and an old man who was hawking fruit. A young man, who was not the Appellant and whose interest (if any) in the dispute was not established by the evidence, intervened and a witness testified to his having said to the victim: "Be careful when you open for business tomorrow morning". At about nine o'clock on the following morning three men attacked the victim and struck him with a wooden pole and an iron pipe. The Appellant was one of these men. There was also evidence that one of the attackers seized a knife from a nearby stall and assaulted the victim with that. The victim suffered a deep cut on the left shoulder, a lacerated wound on the left ear and minor injuries on the left temporal region and right forearm, as a result of which he lost consciousness.

3. The Appellant's defence was that he happened to be passing when he saw a fight between the victim and two men who were attacking him. The two men were the Appellant's friends, so he went "to give assistance", by which he said he meant that he tried to separate the combatants. To the police he said he had "used his right hand to press down [the victim's] shoulders forwards", but he explained this as meaning that he tried to push the victim away from his attackers. The Appellant added that he saw one of the attackers seize a knife and that in the fray he (the Appellant) received a deep cut on the right hand. Afterwards he went away and did not report to the police, because he "did not want to get into trouble". In answer to his own advocate he said:

"I did not expect only blunt instruments to be used. I only expected them to use their bare hands. I didn't expect them to use knives, only blunt instruments. ...... I thought the use of weapons would be confined to use of blunt ones".

In his statement to the police he said:

"I was afraid that [the victim] would be chopped dead, so I used my right hand to ward off the knife".

The injury on the Appellant's hand could have been caused in either of two ways: he may accidentally have got in the way of one of the criminals or (and this is perhaps supported by the passages we have cited) he may have taken fright when one of his fellows seized the knife and have sought to protect the victim from an injury which had not been contemplated when the attack was planned. Whichever was the true position we see no ground upon which we could interfere with the verdict: the use of the blunt instruments was clearly in pursuance of a common design and the inference of a common intent to cause grievous bodily harm cannot be faulted.

4. As to the sentence, however, we think we ought to take the view of the evidence which is most favour able to the Appellant. It was, as the judge said, a cowardly thing for the Appellant to do to hold the victim so that the others could hit him with a pole and a pipe, but it is strongly in his favour that he reacted as he did to the use of the knife and it is important that the most serious harm which in the event resulted to the victim must have been caused by the knife. We think justice will be done if we allow the appeal against sentence and substitute a sentence of eighteen months' imprisonment.

5. We so order.

17th August, 1977.

Representation: