Lui Wing Hang v. The Queen
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CACC000596/1969 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO.596 OF 1969 -----------------
----------------- Coram: Rigby, S.P.J. Date of Judgment: 1 September 1969 ----------------- JUDGMENT ----------------- 1. The appellant, a hawker aged 22, pleaded guilty to the charge preferred against him of wounding. He was originally sentenced to 18 months' imprisonment. He applied for a review of that sentence and Mr. Sanguinetti then appeared for him and appears now before this Court. On the review, the learned magistrate reduced the sentence for 18 months to 9 months. Despite that fact, the appellant still appeals to this Court against the sentence of 9 months' imprisonment on the grounds that it was too severe. 2. The brief facts of the case, as they appear on the record of the case - which statement of the facts were read out at the time and admitted by the appellant - are as follows: it would appear that the appellant's brother was an apprentice working in a tailor's workshop. At about 2 o'clock on the afternoon of 28th June, one of the tailors in the workshop scolded the appellant's brother, saying that he was loitering and doing nothing and slapped his face. The brother left the workshop. At 5.00 p.m., three hours later, the appellant returned to the tailor's workshop with his brother. He then asked the tailor why he had assaulted his brother. An argument took place and, upon the facts as they appear on the record, the appellant took out a knife from his pocket and stabbed the tailor in the chest. The tailor was taken to the Queen Mary Hospital where he was detained and released the following day. It was found that he had a wound about 3" long over the left lower chest which, according to the medical certificate, was deep into the right side of the chest. Those were the facts as they were put before the learned magistrate and, according to the record, admitted at the time by the appellant. 3. The appellant, despite his youth, has a number of previous convictions although it is certainly true that none of them were for offences of violence. There are 5 offences in all, dating back to 1960; 4 of them being for offences of dishonesty. The sentences imposed in those cases varied from a fine to detention at a remand home; and to detention at a training centre, in respect of the last offence, which was committed in September, 1964. Mr. Sanguinetti has sought to put before this Court facts in relation to the incident which certainly are at variance with the facts as they appear on the record of the learned magistrate. He has stated - or he has sought to say before the Court - that whilst the appellant was in the tailor's shop in the afternoon, after an argument had arisen, he was surrounded by 4 tailors and that the door of the shop was closed; that seeing these tailors surrounding him, threatening him, and after having been struck at least one blow by one of the tailors, he lost his head, drew out his knife and stabbed the victim in circumstances partly of self-defence and partly of panic. If, of course, those were the true facts I have no doubt that first, the magistrate would not have accepted the plea of guilty and, secondly, even if he had convicted him there would have been a considerably lesser sentence. 4. Crown Counsel disputes the correctness of those facts and informs me that there is nothing upon the police file of the case to substantiate that those were indeed the true facts of the case. In those circumstances it seems that no useful purpose whatsoever would be served by granting an adjournment of the case. Furthermore, I say this: that I am firmly of the opinion that if facts are sought to be put before a court in support of an appeal which are at variance with the facts, as they appear on the record, then at least an affidavit as to those alleged facts ought to be put before the court, and a copy of that affidavit earlier delivered to the prosecution so that they may have an opportunity either to admit or to deny those facts. Suffice it for me to say that I am unable to accept those facts put before me by Mr. Sanguinetti as the true version of the facts as they occurred. 5. The facts as outlined to the Court were, as it appears from the record, admitted by the appellant at the time. It is, of course, true to say that he was not represented at the original hearing before the learned magistrate at the time he pleaded guilty to the charge. But even allowing for that, it seems to me that I am quite clearly bound by the facts as they appear on the record. Considering those facts, it is quite clear that the appellant returned to the tailor's shops some 3 hours after his brother had left the workshop, and it is perhaps not an unreasonable assumption that he went there in an aggressive mood - ready, if necessary, to pick a quarrel with the person who had assaulted his brother. It seems to me that that is not only a reasonable inference but an irresistible inference from the facts as they appear on the record. 6. Offences by young persons involving the use of weapons of this nature - knives - are all too prevalent, and I can see no proper reason why I should in any way interfere with the sentence of 9 months' imprisonment by the learned magistrate. The appeal is therefore dismissed. Representation: Sanguinetti (J.S. & Master) for Appellant. Penlington, P.C.C. for Crown/Repondent. |