Lam Shui Kam v. The Queen
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CACC000621/1967 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 621 OF 1967 -----------------
Coram: Rigby, S.P.J., Briggs, J. and Huggins, J. Date of Judgment: 19 January 1968 ----------------- JUDGMENT ----------------- 1. The appellant seeks leave to appeal against sentences of 5 years and 3 years imprisonment, to run concurrently, imposed upon him by a Supreme Court judge for the offences of wounding with intent and throwing corrosive liquid with intent to do grievous bodily harm. At the outset of committal proceedings taken against him in respect of these two indictable offences the appellant pleaded guilty to both charges before the magistrate and the magistrate, in accordance with the recently enacted provisions of section 81B of the Magistrates Ordinance, committed him to the Supreme Court for purposes of conviction and sentence. Before the Supreme Court the appellant maintained his plea of guilty to both charges; the learned judge accepted those pleas and, having recorded convictions thereon, imposed the sentences from which the appellant now seeks leave to appeal. 2. A point has been raised by Mr. Boy, Crown Counsel, as to whether there is not some lacuna in the procedural sections enacted and as to whether any right of appeal actually exists. Section 81 of the Criminal Procedure Ordinance only provides for appeals in respect of persons "convicted on indictment". The proposition advanced is that since no indictment has been filed - the accused having only been committed for sentence on the original charge sheet filed in the Magistrate's Court - no right of appeal can lie under section 81 of the Criminal Procedure Ordinance. Similarly, since no conviction or sentence was ever recorded or imposed by the magistrate no appeal can lie from his court. Thus, it is said that there is a lacuna in the law as it now stands and that no appeal lies. Section 81B(4) provides that "The judge before whom the accused is brought -
The point raised is by no means free from difficulty and it would undoubtedly have been far more satisfactory if the draftsman had followed the normal practice of using the expression that the accused, upon a plea of guilty, 'shall be deemed to have pleaded guilty to the offence charged as if he had pleaded guilty on arraignment upon an indictment filed by the Attorney General'. Nevertheless, albeit with some doubt, the majority of the members of this court have come to the conclusion that the only reasonable and logical interpretation to be placed upon the words contained in the Section is that the accused person is to be treated in exactly the same way as if he had pleaded guilty to the offence charged on an indictment filed by the Attorney General. If he is to be treated for purposes of conviction and sentence, as if he had pleaded guilty upon indictment, then it seems to us to follow as a necessary implication that he is to be regarded as "A person convicted on indictment" within the meaning of section 81 of the Criminal Procedure Ordinance and that he has such rights of appeal as are provided by that section. The Court is therefore of the opinion that the appeal is validly instituted. 3. Turning now to the matter of sentence. The appellant, aged 29 and a man of hitherto good character, had been living for some time past with the female complainant, a woman who was not his wife. She had in fact previously been a prostitute. Living on the same premises was the male complainant, a very good friend of the appellant. One evening whilst the appellant was out of the house the male and female complainants decamped together and, in fact, stayed away for two nights. The appellant traced them, found them and persuaded the woman to return to live with him. The male complainant, the erstwhile friend of the appellant, also returned to their common habitation and to the cubicle which he occupied next to that of the appellant and the female complainant. In the early hours of the following morning the female complainant was awakened by cries coming from the adjoining cubicle. The next she knew was a sensation of pain on both sides of her face. It was apparent that the appellant, presumably brooding in the night over the wrong done to him by his former friend, had got out of bed, taken a bottle of corrosive liquid and poured it on the male complainant's face as he lay in bed. He had then returned to his own cubicle, taken a razor blade and slashed the female complainant on both sides of her face. The incident occurred on the 30th August. Both complainants, at the request of the Court, were present in Court so that we were able to see the injuries they had sustained. Fortunately, the eyes of the male complainant were not injured and apart from a slight sloughing of the skin on the right side of his face he had sustained no permanent injury. The injury done to the female complainant was, unhappily, a good deal more severe. She had cuts, one on either side of the face, which would appear likely to cause permanent disfigurement. The learned judge imposed a sentence of 5 years imprisonment in respect of the wounding of the female complainant and 3 years for the acid attack on the male complainant, such sentences to run concurrently. The sentence, particularly that of 5 years imprisonment for the wounding of the female complainant, is one that has caused us anxious consideration. Undoubtedly the injuries inflicted were severe and of a lasting nature. The appellant has said, and we have no doubt it is true, that he did not realise the extent of the injuries he had inflicted upon the woman until he saw them later. The injuries were, of course, inflicted in darkness or semi-darkness. 4. The appellant has never been in trouble before. Before this Court he said that he had acted in a moment of anger and he expressed genuine contrition and remorse for what he had done. From the outset he pleaded guilty to both charges and made no attempt to invent some kind of defence as an explanation for the injuries he had inflicted. Those are all matters that may, and should be taken into consideration when imposing sentence. In the appropriate case a sentence should reflect the mitigating factor that an accused person has pleaded guilty to an offence and has not sought to lie his way out of it. (See the recent observations of the Court of Criminal Appeal in Reg. v. De Hann reported in The Times dated 10th October, 1967.) Taking all these matters into consideration this Court is of the opinion that the sentence imposed of five years imprisonment upon the first count did not give adequate consideration to these mitigating factors. The appeal will accordingly be allowed to the extent that the sentence on the first count will be reduced from one of five years imprisonment to three years imprisonment, such sentence to run concurrently with the sentence of three years imprisonment imposed on the second count. The sentences will run as from the date of conviction.
19th January, 1968. Representation: Appellant in person. Boy, Asst. P.C.C. for Crown/Respondent. IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 621 OF 1967
Coram: Rigby, Briggs & Huggins, JJ. Date of Judgment: 19 January 1968 ----------------- JUDGMENT ----------------- Huggins, J: 5. While I entirely agree with my Lords that it is reasonable and logical to give persons in the position of the Appellant a right of appeal and while I have only a very little doubt that the legislature would have wished them to have a right of appeal, I cannot bring myself to believe that to construe the words of the relevant statute as conferring such a right is legitimate "interpretation". In Seaford Court Estates Ltd. v. Asher(1) Denning, L.J. (as he then was) said:
It seems to me that what it is suggested we should do here is more than just to iron out creases: we are invited to alter the material, even though the alteration is to be made only to the material at the edge, where it joins the material of another statute, in order that the join may be tidy. In Seaford Court Estates Case(1) the court held that in the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 the words "the terms on which any dwelling house is held are on the whole not less favourable to the tenant" should be construed as referring to contractual terms although the legislature had not said so: they had overlooked the possibility that a landlord might be generous enough to supply services which he was not bound to supply under the tenancy agreement. It seems to me we are asked to go further in the present case. Section 81 of the Criminal Procedure Ordinance gives a right of appeal to a person convicted "on indictment". The legislature could easily have said that a person committed for sentence under the provisions of s.81B(4) of the Magistrates Ordinance should be "deemed to have been convicted on indictment" save where the judge saw fit to direct that proceeding before the magistrate be continued. A right of appeal would then have arisen under s.81 of the Criminal Procedure Ordinance. Instead the legislature chose to say that the judge shall have the same powers "as he would have had if the accused on arraignment ....had pleaded guilty ....". This implicitly recognises that the accused has not so pleaded guilty but has pleaded guilty upon some other form of procedure. On a plain reading of the words, as it seems to me, the appellant has not pleaded guilty in the manner required to found an appeal under s.81 of the Criminal Procedure Ordinance and I think I should be usurping the function of the legislature if I were to hold otherwise. 6. As my Lords are of a different mind their judgment will prevail. They have further said that they think the learned trial judge did not give due weight to the matters to which they have referred, although they do not suggest the sentences were wrong in principle. As to that I shall say nothing.
19th January, 1968 Representation: Appellant in person. Boy, Asst. P.C.C. for Crown (Respondent) (1) (1949) 2 K.B. 481, 499. |