The Queen v. Cheng Siu Lung

CACC000494/1985

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 494 OF 1985

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BETWEEN

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Coram: Hon. Li, V-P., Yang, J. A. and Penlington, J. in Court

Date of Hearing: 29th January 1986

Date of delivery of judgment: 29th January 1986

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JUDGMENT

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Penlington, J.

1. This is an appeal against conviction and sentence on a charge of wounding with intent to cause grievous bodily harm. (Section 17 of the offences Against the Person Ordinance Cap 212). Mr. Polson who appeared for the appellant properly and, we think, quite rightly, confined his arguments against conviction to the question of the appellant's intention to cause grievous bodily harm and submitted that the facts of this case supported a conviction on a charge of section 19 Wounding but that there was not the intention necessary to support a conviction under Section 17.

2. There was evidence before the learned trial judge which he accepted that there was an argument between the appellant and the foreman of the Power Station where he was working; this went on for some time, involving the question of money and also involving another employee who was present. That employee was also charged but was acquitted. The evidence was that the appellant hit the victim, Mr. Yung, with his "hard hat". He then rushed out of the room and came back very soon afterwards with a 2' long knife, which he pointed at Mr. Yung. There was a table between them and Mr. Yung said he spread out his hands and said "anything can be settled, there was no need to use a knife". The appellant then slashed him on the neck. This resulted in a laceration which from the agreed medical evidence was about 6 centimetres long. It bled profusely. The trial judge said in his findings that "with a superficial skin laceration on the left side of the neck according to the agreed medical evidence, the victim has been left with a nasty scar". Mr. Yung said in his evidence that after the assault the appellant said "I can hack you here or on the street". He then left and Mr. Yung sought medical treatment.

3. Mr. Pelson has cited to us a decision of the Court of Appeal, that of The Queen v. Cheung Yuen Hing Criminal Appeal No. 273 of 1985. There were the victim received two injuries, both described as "deep lacerations" although both were about the same size as here but they appeared to have been inflicted with metal bar. In that case, however, quite clearly there was a confrontation between a group of taxi-drivers and a group of persons from a temporary housing area. There was a fight during which the wounds were inflicted and it was not, in our view, the same sort of situation here which was an attack with a knife on a completely unarmed and defenceless person. It was not premeditated in the sense that when the appellant went in to see Mr. Yung, he probably had no intention at all of attacking him in this way. Nevertheless he did leave the room, get the knife and come back with it. It was not as if the weapon was simply lying to hand. There was some degree of premeditation. We are satisfied that the trial judge was right in deciding that applying the test of whether a member of the public would regard this as a serious wound and on the evidence, we are satisfied that he was also right in deciding that the appellant did have the necessary intent to cause grievous bodily harm. He probably is fortunate that the wound was not great deal more serious. It was on the side of the neck just below his ear and near an artery.

4. So far as sentence is concerned, this is a sad case, there is no doubt about that. We fully appreciated that the appellant acted out of character and there was nothing in his previous history to show that he was prone of violence in any way. It could well be that if there had been genuine remorse shown, remorse not just for his own situation but for what he had done to Mr. Yung, the Court may well have been able to take a more lienent view of it but after the incident and during the course of the trial there appears to be no such remorse. When he was interviewed by a probation officer he did apparently become very tearful and pleaded to be dealt with lienently. However, the trial judge said that seems to have been out of concern for his own position rather than that of the victim. We think that, under the circumstances, a sentence of two years imprisonment was perfectly proper and the appeal against sentence must be dismissed.

Representation:

Mr. Ian Polson (So & Karbhari) for Appellant

Mr. I. G. Cross and Mr. C. Coghlan, Counsels for Respondent