The Queen v. Lau Kwong Yin

CACC000541/1988

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Coram: Silke, V.-P. & Hopkinson, J.

Date of Hearing: 3 March 1989

Date of Judgment: 3 March 1989

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JUDGMENT

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Silke, V.-P.:

1. The Applicant, Lau Kwong Yin, was convicted on his own plea before His Honour Judge Caird in the District Court for the offence of wounding with intent for which he received a sentence of 12 months imprisonment. He now seeks leave to appeal against that sentence.

2. At the time of passing sentence the judge had a copy of a medical report and also a report from the Probation Officer. We have had the benefit of a further report from the Probation Service and called for by this Court.

3. The Applicant has in his homemade grounds brought to our attention the background of his family, of himself, of his marriage and of the events which led up to the attack which resulted in the wounding. He has also presented to us today a written submission which We have read and which followed the same lines but with different emphasis on various aspects of the matter as the grounds.

4. This is a very sad case. The Applicant is clearly an ambitious and intelligent man. His father died when he was young and his mother brought up himself and the other members of the family He left secondary school, went to a technical institution and then to the Polytechnic where he obtained a Certificate in Building Studies. At the time of his offence he was working as a quantity surveyor earning $7,500 per month.

5. He was also a gambler and in 1984 he met the woman who was to become his wife. He was in debt. His family has distanced themselves from him but the woman gave him consolation. Unfortunately, she herself suffered from mental illness. She is a diagnosed. Schizophrenic. She became pregnant by him and they married. A daughter was born in March of 1988. The wife's mental condition did not assist in the care of that child and the Applicant had to work The result was that the child, with the assistance of Social welfare Department, was placed in care.

6. During the period of the marriage the wife disappeared on occasions. The Applicant discovered that she had started to live with another man. He asked this man to leave her alone but the man would not and, on 13th September 1988, the Applicant took some liquor, became even more depressed than he already was and went to the premises where the wife was living with this man. There he saw the wife and the man together and, as he put it, he lost control of himself and stabbed man with a pair of scissors. This caused a 6 cm deep laceration on the man's right shoulder and we have seen the weapon. The Applicant was almost immediately arrested.

7. In the submissions he had made to us he expressed great concern for the welfare of his daughter and for his eighty years old grandmother She is the only member of the family now in Hong Kong, the rest being in Canada. He has expressed his hope that if he were released earlier he would be in a better position to care for the daughter and the grandmother.

8. We are aware of the actions of the wife in taking away the Child from care purely to suit her own purposes acts which were described by the Probation Officer as "childish wilful and mischievous". The child remains in care and her welfare will continue to be looked after by the Social Worker.

9. It would seem that neither the wife nor the Applicant would be in position to give personal care to the child though the Applicant has suggested to us that he will bring the aged grandmother back from the Home for the Elderly in which she now resides in order to look after the child and to live with them.

10. All of these are matters which we have considered and born in mind are also matters which the trial judge had in mind save of course, that we have had the benefit of the additional Probation Officer's report. He came to the conclusion that the only appropriate sentence was a custodial one. With that we entirely agree Violence of this nature cannot be condoned by the Court whatever the provocation may have been.

11. The judge stated that the term lie imposed was considerably lower than the one he would normally have had in mind. He instanced in particular four factors that the dispute was in its nature a domestic one the general background of the Applicant, the fact that he co-operated with the police and the plea of guilty which caused him to take the course he did. As We have pointed out to the Applicant in the course of the debate this morning there was an element of premeditation in this offence in that he brought the scissors with him. The sentence passed of one year's imprisonment was on the face of it a lenient one. We have given anxious consideration to the matters which have been brought to our attention but nth s form of attack is something which cannot` be encouraged. As we said at the start of this judgment, this is a very sad case but we do not think the sentence imposed is such as to warrant our interference

12. The application for leave to appeal against sentence is refused

Representation:

Applicant - in person

I.G. Cross, Esq. for Crown/Respondent