The Queen v. Tam Lam Wong

CACC000559/1988

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Coram: Hon. Yang, C.J. Fuad, V.-P. and Penlington, J A.

Date of hearing: 29 March 1989

Dace of delivery of judgment: 29 March 1989

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J U D G M E N T

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Penlington, J.A. delivered the judgment of the Courts:

1. This is an application for leave to appeal against a sentence of 3 years' imprisonment on conviction before His Honour Judge Leong in the District Court on a charge of wounding contrary to Section 17 of the Offences against the Person Ordinance Cap. 212, that is wounding with intent to cause grievous bodily harm. An appeal against conviction is abandoned.

2. The facts of the matter as found by the District Judge were that there was a quarrel between the applicant, who is a taxi drivers and two passengers, a man and his girl friend but in particular with the man passenger, in Public Square Street, Kowloon, on the 16th June 1988.

3. It seems clear that there was an argument over the male passenger's behaviour and in particular as he had slammed the taxi door on alighting and the applicant clearly lost his temper because of this. There was a very heated argument. The applicant went to the boot of his taxi, took out a wine bottle and struck the passenger on the head. There was no suggestion that the passenger was armed in any way. The bottle broke and the applicant then attacked the passenger with the broken bottle.

4. Injuries were caused which consisted of a minor cut to the hand, a more serious cut on the ear but two cuts on the side of the neck one of them being described as "a deep chop wound of 9 cm on the side of the neck". There was profuse bleeding from these wound and, in the applicant's favour, he remained on the scene, took off his jacket and attempted to stop the flow of blood. Also much in his favour is that he used his taxi radio no summon medical assistance.

5. It has been said very fairly by Mr. Macrae before us that while one wound in particular was serious there was really none of the other elements which would have made this offence one calling for very substantial imprisonment. There was no suggestion of a Triad background, or a gang attack nor that this was a long-term premeditated attack. Mr. Macrae has to concede that clearly there was some premeditation in getting the bottle from the boot. Quite clearly also this was a case where on a plea of guilty to the offence a great deal could have been said in mitigation which was not available to counsel at the trial as to remorse.

6. This was then a very unfortunate case of a man totally losing his temper over a trivial dispute with a perfect stranger, arming himself with a very dangerous weapon and causing a severe injury which could well have been fatal. No doubt he immediately regretted what he had done and tried to assist. At the trial he endeavoured to set up self defence which on what seems to have been largely undisputed facts was simply not open to him, as Mr. Macrae concedes.

7. The applicant has one previous conviction for fighting in a public place in 1984 for which he was fined. That is of little significance here apart from some indication of a disposition towards violence.

8. We have been referred to three order previous Hong Kong decisions which, as Mr. Bruce for the Crown agreed, do appear to be the ones most relevant to the facts here. However as with all previous authorities relating to sentence, one is only looking for principles. The trial judge has got to take into account the facts of each particular case and judges cannot be bound by other cases where inevitably the facts are somewhat different. The one which does seem to be closest to what we have here is Cheng Siu Lung v. The Queen Criminal Appeal 494/85 where there was also an attack on a person's neck, in that case with a knife, a sentence of 3 years was reduced to 2 years but there again there were factors present which were not here. There the defendant left the scene after inflicting the injury but it was only one cut and does not seem have been as serious.

9. In another decision not cited that of R. v. Lee Wing Crim. App. 589/87 there was an attack with a knife on a Hawker Control Officer. The facts and background were different again but this Court did say that a sentence of four years should be a starting point for an attack with a dangerous weapon on a public officer.

10. Thomas on Sentencing (2nd Edition) says at P.93 in relation to sentences for this offence "sentences shorter than three years will normally be found only where unusually strong mitigating factors are present". He refers to R. v. Gunn where a dunce hall bouncer used a broken beer tankard to wound a man involved in a fight on the dance floor. A sentence of 5 years was upheld.

11. We have to look at these cases on their own facts and decide whether the sentence imposed was such as calls for our Intervention. We are satisfied that while there were matters here in mitigation, the sentence imposed was not such as to be excessive as to justify our intervention. The application must therefore be refused.

Representation:

A.C. Macrae (Kwan & Kwan) for Applicant

A. A. Bruce for Crown/Respondent