The Queen v. Lui Hin-kwong

CACC000417/1984

IN THE COURT OF APPEAL

BETWEEN

Coram: Yang, Silke & Barker, JJ. A.

Date of Hearing: 1st November 1984

Date of Judgment: 1st November 1984

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JUDGMENT

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[Wounding with intent: comments on lack of medical evidence]

Silke, J. A.:

1. The applicant, LUI Hin-kwong, was convicted after trial in the District Court of three offences: the first: wounding with intent and the second and third: assaults upon police officers on the occasion of his arrest. He received on the first count in the charge sheet a sentence of imprisonment of 3½ years and, on each of the assault charges, three months, all sentences to run consecutively making a totality of four years.

2. He seeks leave to appeal against both conviction and sentence.

3. The sole evidence against him was that of a sixteen year old boy who had, in the course of an identification parade on the 27th March, identified the applicant as the person who had attacked him.

4. This attack had taken place on the 15th March at the podium of the Kwai Shing Estate. The sixteen year old boy was skating there at the time. He was approached by a group of about seven persons armed with knives. He attempted to flee but was chopped three times: on the right arm, near the shoulder and at the wrist.

5. On identification the witness said that he had possibly seen the applicant in the neighbourhood as a person of belonging to a nearby estate. He did not know his name but he did recognise him positively as one of the persons in the attacking group and as one who had chopped him.

6. The trial judge considered all the issues of identification and its dangers. He had warned himself of the circumstances of the actual attack, of the lighting at the time and the period during which the boy who was attacked had had an opportunity to see those attacking him.

7. The assaults upon the police officers arose from the applicant's being stopped for an apparently routine check on the 23rd March. When the applicant was told that he was going to be taken to the police station he then punched a Detective Police Constable. He tried to run away and he fell. He was then caught by another Police Constable whom he kicked in the stomach.

8. The applicant in his own evidence admitted the fact of an incident taking place but said that he was scared and he was not aware of intentionally hitting or kicking the officers.

9. There was ample evidence here upon which the trial judge could come to the conclusions he did and we see no reason to interfere with them.

10. I would add this that no medical certificate was produced in relation to the injuries of the sixteen year old boy. The actual sears left by those injuries had been pointed out to the trial judge in the course of the trial. But the Judge had been very conscious of the fact that no medical certificate was produced or medical evidence called.

11. This is not the first time that this Court had been constrained to comment upon the lack of evidence of this nature in a wounding charge. It is important in relation to the case for the prosecution to have such evidence. It is equally important for a trial judge to have it before him in assessing the sentence which he should pass upon a conviction. We hope it will not be necessary for us to make such comments again.

12. As to sentence: the applicant has not proffered to us any written grounds in relation to sentence but we have heard that which he wished to say to us.

13. This was a vicious attack upon a sixteen year old boy whom it would appear will be scarred for life. There may well be a background of a dispute between an upper and a lower estate but that is no excuse for conduct of this kind.

14. The two assault offences merited the sentences passed in respect of them. The sentences were properly made consecutive. While we are conscious of the age of the applicant, nineteen, nevertheless the sentences are proper in their totality.

15. The applications in respect of conviction and sentence are both refused.

Representation:

Applicant in person.

M. K. Ricketts, Esq. for Crown/Respondent.