Wong Ngan v. The Queen

CACC000462/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 462 OF 1973

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Coram: Pickering, J.

Date of Judgment: 25th June, 1973.

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JUDGMENT

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1. The appellant pleaded guilty to two charges of unlawfully and maliciously wounding WONG Shek-kam and MA Yan-muk respectively, on the 2nd day of May 1973, and not guilty to assaulting WONG Yuk-ip, thereby occasioning her bodily harm, on the same date. He was convicted upon all three charges and sentenced to six months imprisonment on the first two charges and to one month's imprisonment on the third, all sentences to run concurrently.

2. The appellant and the three injured persons all live in Block 11 of Tai Wo Hau Resettlement Estate, Tsuen Wan, their premises being back to back and separated by a wall. Between that wall and the ceiling there is a gap for ventilation and, about one month prior to the events which formed the subject of the charges, the appellant had blocked up this gap with wooden boards; the victim in the first charge had requested the appellant not to do this because of the heat.

3. Some time in the afternoon of 2nd May 1973 the victim in the first charge took a pole and knocked down the boards covering the ventilation gap - a state of affairs which was discovered by the appellant upon his returning home. He thereupon took a pick handle, went to the home of the three victims and there attacked the victim in the first charge, upon which the victims of the second and third charges, daughters of the victim in the first charge, came to his assistance and were also assaulted by the appellant with the pole.

4. The victim in the first charge, who is 68 years old, received a 3-inch long laceration over his forehead which necessitated suturing whereas the victim in the second charge, a lady of 48 years old, received 1 ½-inch laceration over the skull which also required suturing, abrasions over the left loin area, bruises over the dorsum of the right hand and bruises along the dorsal aspect of the forearm with fractures of the bases of the first and fourth metacarpal bones; the victim in the third charge, a girl of 10 years old, sustained some bruising of the stomach.

5. A report was made to the police and the appellant taken to the police station. In cross-examination of the victim in the first charge the appellant put it that upon his return from the police station, he was in turn assaulted by sons of the witness. To this question he received no reply. It was the evidence of the appellant that this in fact occurred and that he reported the matter to the police station but that no action was taken by the police in respect of this retaliatory assault.

6. The appellant has a clear record and, as I have said, pleaded guilty to the two more serious charges.

7. Mr. Tang, who appeared for the appellant upon his appeal, argued that the assaults, although serious, were matters arising out of a dispute between neigbours living in frustrating proximity in overcrowded conditions. The learned magistrate had said that in imposing sentence, he took into account the fact that the appellant had a clear record but had not said that he was taking into account the pleas of guilty to the two more serious assaults and urged that in the circumstances, whilst a custodial sentence was perhaps not inappropriate, the sentences of six months imprisonment were heavy.

8. It seems to me that there is merit in these contentions. The appellant is of previously blameless reputation and if the learned magistrate did in fact take into account his plea of guilty to the two more serious charges, he has not said so in his Statement of Findings so that I think it incumbent upon me to assume in favour of the appellant that the magistrate did not do so. The assaults were not those of a thug out for robbery or for gang vengeance but arose from the frustrations of the overcrowded conditions in which the parties live; moreover, there appears to be little doubt that the appellant was in his turn assaulted by sons of the victim in the first charge and that, despite complaint to the police, no action was taken in respect of this assault. In all the circumstances I allow the appeal as to sentences in respect of the first and second charges the six months concurrent sentences in respect of which are reduced to three months in each case to run concurrently. The appeal against the concurrent sentence of one month's imprisonment on the third charge is dismissed.

Representation:

R. Tang (H.H. Law & W.S. Lo) for appellant

Corrigan, S.C.C., for respondent.