Pun Sing Wah v. The Queen
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CACC000690/1968 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO.690 OF 1968 -----------------
Coram: Huggins, J. Date of Judgment: 13 December 1968 ----------------- JUDGMENT ----------------- Huggins, J: 1. This appeal comes before me as an appeal against sentence. The appellant was charged with others with an assault occasioning actual bodily harm. He pleaded guilty and in all the circumstances of the case, which I need not go into in detail, the learned magistrate made an order of detention in a Training Centre. 2. The appellant has asked me for a final chance on the ground that he is working to assist his father in a business, but he has also continued to maintain before me that he should be given this chance because his part in what happened was that he was trying to stop the fight. The learned magistrate said:
I take the learned magistrate there to be saying that the appellant did not expressly before him say that he was acting as a peace maker, for there were before the learned magistrate two reports in which it appeared clearly that the appellant had been making this allegation. The appellant was on probation at the time of this alleged offence and the appellant told the probation officer that that was what happened. He told the same story to the After-care Officer of the Training Centre, and it also appears that this is what he told his father. In my view if the appellant was taking an active part in the unlawful assault the sentence which was passed was a proper one: if I were to allow the appeal against sentence it could only be on a basis which would show the appellant not to be guilty of an unlawful assault at all. 3. The appellant has suggested before me that he pleaded guilty because he thought that by hitting somebody he was necessarily guilty of the offence charged. That, of course, is not the law. After much deliberation and after having had the advantage of an interview with both the probation officer and the After-care Officer, I have come to the conclusion that I ought to treat this case as an appeal against conviction. I can readily appreciate why the learned magistrate should take the course which he did: it is very easy for somebody who has pleaded guilty to an assault to make such allegations as that which has been made by the appellant. Nevertheless I am not entirely happy that justice can be done without having this matter re-tried. It may well be that the impression which the learned magistrate had will prove to be the correct one: I do not know. However, I propose, as I say, to treat this as an appeal against conviction, to allow the appeal and to remit the case to the magistrates' court for trial de novo. 4. The appeal is allowed and the sentence set aside on those terms. I would only add this, that if the appellant be found guilty at the later trial then the magistrate (or those responsible at the Training Centre if a detention order thereupon be made) will not doubt take into account the fact that the appellant has been re-tried and that in consequence the sentence will start from a date later than that which was originally ordered. 13th December, 1968. Representation: Appellant in person Mr. Evans for the Respondent |