Yip Chi-hung and Another v. The Queen
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CACC001112/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 1112 OF 1974 -----------------
----------------- Coram: Full Court (Briggs, C.J. Huggins & McMullin JJ.) Date of Judgment: 10th February, 1975. ----------------- JUDGMENT ----------------- McMullin, J.: 1. The two appellants pleaded guilty to wounding with intent to cause grievous bodily harm. Originally they were charged with a third person upon an indictment containing a single charge of wounding with intent to murder. Upon these pleas being accepted the appellants were convicted of the latter charge and the trial of the other prisoner (who then appeared as the second accused in the case) proceeded and he was acquitted upon the original charge. 2. The first appellant was sentenced to eight years' imprisonment and the second appellant to nine years. Mr. Zimmern on behalf of the first appellant and Mr. Sedgwick on behalf of the second have argued that these sentences were manifestly excessive in all the circumstances. Mr. Zimmern has argued in addition that the difference of one year does not adequately reflect the fact that his client voluntarily surrendered to the police a week after the occurrence and thereafter showed remorse by assisting them in the investigation of the affair, it being common ground that his assistance eventually led to the arrest of his co-appellant. 3. The victim in the case, like both the appellants, is a person with Triad associations. The facts which led up the attack in which he received his injuries, and which are not in dispute, were that in 1973 the victim met the second appellant in the street in the company of a girl whom he had previously known. He objected to her consorting with the second appellant and a fight arose in the course of which the victim slashed the second appellant on the face with a knife. At the hearing of the appeal it was alleged that upon the same occasion the second appellant had received other injuries upon the forearm and the wrist and upon his back but that would not appear to have been admitted by the Crown. At all events he clearly received severe injuries to his face which damaged the facial nerves resulting in what appears to be a pronounced facial tic. It is common ground that the attack upon the victim was a revenge attack in which the two appellants and four other men took part. It took place in a street in Tsuen Wan on the 10th of May 1974. All the assailants were armed with knives or similar weapons, the victim himself being unarmed. He was treated in hospital for many injuries which included chop wounds upon the face similar wounds down both arms which penetrated to the bone and caused some chipping of the bone, and wounds upon the head which penetrated the skull and caused a fracture in two places. Both of his hands were cut, the left hand being particularly badly damaged by reason of the severing of some tendons resulting in permanent damage which has rendered that hand almost useless. 4. The second appellant admitted that he had slashed the victim's face. In addition it was accepted by counsel who spoke for the accused in mitigation in the lower court that the injury to the victim's hand had been caused by the second appellant who delivered the actual blow while the first appellant held the arm and hand of the victim outstretched to receive it. Both appellants have previous convictions. In 1971 the second appellant was put on probation in connection with a charge of being a member of a Triad society and for possession of an offensive weapon; in 1972 he was convicted of taking a conveyance without authority and was once more placed on probation. The first appellant had a previous conviction for robbery with aggravation for which he was put on probation for two years in 1968. 5. In passing sentence the learned trial judge dwelt upon the extreme gravity of the nature of the assault with special reference to the variety and viciousness of the weapons used. Notwithstanding counsel's submission in this regard we cannot say that there was an undue emphasis on any of these matters. It is true that this was a reprisal attack by persons with criminal associations against another person of the same character and that, so far as the record goes, no law-abiding member of the public was put at risk or even subjected to inconvenience. Such reflections alone, however, in view of the atrocious nature of the incident, would not of themselves have justified any interference by this court. We have, however, intervened because of two matters upon which counsel have relied. Firstly, in imposing sentence the learned judge told the appellants that, prior to the speeches in mitigation it had been in his mind to sentence both appellants to twelve years' imprisonment. Prior to that he told them that, had they been convicted upon the original charge of wounding with intent to murder, the sentence would have been nothing less than fifteen years. He pointed out, what was patently true, that the victim might well have lost his life. In connection with these observations counsel suggested that the scale of sentences imposed indicated that the judge's approach had been strongly conditioned by the fact that the original charge contemplated something in the nature of an attempt to murder whereas, counsel said, the nature of the assault and of the wounds inflicted told rather in the direction of a desire to inflict gross punishment without killing. That was, presumably, the basis of the Crown's agreement to accept the plea to the lesser charge and counsel felt that this reality had been overlooked in passing sentence. Secondly, and in support of the foregoing contentions, it was pointed out that the researches of counsel for the defence in respect of sentences imposed for crimes of violence of this nature were, over the last few years, consistently and considerably below those meted out in this case. It is unnecessary to refer to the two authorities which were brought to our attention in this regard. Suffice it to say that in all the circumstances, and notwithstanding the terrible nature of the attack, we found sufficient substance in these contentions to warrant reducing the sentences passed upon both appellants. However, in the view of the court, the differential of one year between the two sentences was an adequate reflection of the first appellant's surrender to and co-operation with the police. We therefore allowed the appeal to the extent that the sentences imposed were set aside and for them were substituted a sentence of five years in respect of the first appellant and of six years in respect of the second appellant. Representation: A. Zimmern Q.C. & P. Nguyen (Ho & Co.) for 1st appellant. Sedgwick (Samuel Soo & Co.) for 2nd appellant. Niamatullah c.c. for Crown/Respondent. |