R. v. Lam Chi Yung

CACC000467/1996

IN THE COURT OF APPEAL

1996, No.467
(Criminal)

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Coram: Hon. Power, Ag. C.J., Mortimer and Mayo, JJ.A.

Dates of hearing: 19 March and 15 April 1997

Date of of judgment (re: Conviction): 19 March 1997

Date of of judgment (re: Sentence ): 15 April 1997

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. In this matter the applicant along with four others faced a charge of wounding with intent and a charge of assault occasioning actual bodily harm. The wounding with intent charge particularised that he and four others on 18th November 1995, outside the public toilet of Lion Rock Park, unlawfully and maliciously wounded Chu Hung-kit ("Chu"), with intent to cause him grievous bodily harm. The assault charge particularized the same time and place the victim being Pang Kwok-yiu ("Pang").

2. The incident arose out of an altercation between two parties of young persons that took place at Lion Rock Park after midnight on the evening of 17th November 1995. The evidence as to the assault is as follows. At about 1.30 a.m. Chu, the victim of the wounding charge, saw a group of five, of which the applicant was one, leaving the park. After the group had walked past him they turned and walked up to Pang and the 5th defendant ("D5") asked Pang where he belonged. Pang did not reply but Chu told D5 that it had nothing to do with him. At this point D5 went up to Chu and, without uttering a word punched Chu in his left eye. Chu was wearing spectacles at the time and the punch broke his spectacles and caused the eye to bleed. The medical evidence indicated that the punch, which gave rise to the wounding charge, was delivered with force. Chu said that he lost consciousness for a very short time and that when he awoke he saw his friend Pang being assaulted and went to try to help him after which all five males pushed and kicked him and Pang.

3. Pang's evidence was much the same. He said that D5 had punched Chu in the eye and that D5 then called for his friends to help and that they pushed Chu to the ground and that, when he went to tried to separate them, a struggle ensured in which both victims were assaulted by the five.

4. The judge, at the outset of his reasons, said that as the case involved multiple defendants facing multiple charges, he was reminding himself that he had to consider the case against each defendant separately and to consider each charge separately. He did not, however, despite this warning, anywhere detail the admissible evidence against each defendant. We are uneasy as to one aspect of the matter which has very fairly been drawn to our attention by Mr. McWalters who appears for the Crown. The evidence of both victims indicates that there was a spontaneous blow by D5 which inflicted the wound, the subject of the first charge, and that it was only after this had occurred that D5's companions, including the applicant, entered into the matter. The findings of the judge make this clear beyond argument. As there was no evidence to establish that the applicant was a party to that assault we cannot but conclude that the conviction of the applicant on the wounding charge was unsafe and unsatisfactory. The application for leave to appeal against that conviction is allowed. The hearing of the application is treated as the hearing of the appeal and the appeal is allowed.

5. The application for leave to appeal against the conviction on the assault charge is dismissed. There was ample evidence to establish that charge.

6. We now turn to consider sentence.

7. The applicant was ordered to be detained in a training centre. The judge when so doing said referring to all of the defendants:

"Your respective counsel has said everything that can be said on your behalf, but there mains, section 17 Wounding is a very serious offence. I have considered the appropriate sentence, and I consider a term either in the training centre or detention centre is appropriate."

That observation was proper given that the judge was dealing with a section 17 wounding offence but, the conviction on that offence having been quashed, we are left with the much less serious offence of assault occasioning actual bodily harm. We are satisfied that that offence, given the reports on the applicant which we have read, does not warrant an order that he be detained in a training centre. The applicant will be ordered to be released from the training centre. We will obtain a report from the training centre as to his progress therein. The matter will be adjourned till 9:45 a.m. on Tuesday 15th April to allow us to obtain the training centre report and a further probation report. We will then make the appropriate order.

8. Having read the progress report from Lai King Training Centre & the probation report, the applicant is conditionally discharged under s.107, Cap.221, upon entering into recognizance to be of good behaviour for 18 months.

Representation:

Mr. I.C. McWalters (Crown Prosecutor) for the Respondent.

Applicant in person.