The Queen v. Wong Siu-lung
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CACC001136/1982
BETWEEN
_________________ Coram: McMullin, V.-P., Li & Silke, JJ.A. Date: 24th February 1983 ____________ JUDGMENT ____________ Silke, J.A.: 1. This is an application for leave to appeal against the sentences imposed in the District Court in r elation to two charges of occasioning actual bodily harm. 2. On the first of those charges the applicant was sentenced to a period of nine months' imprisonment and on the second charge he was sentenced to a period of three months' imprisonment. These sentences were ordered to run concurrently, giving a totality of nine months. 3. He had pleaded guilty to those two charges and to a third charge of criminal damage - in relation to which he was convicted and discharged. 4. The events took place on the 17th April 1982 and it would appear that, some few days before, the applicant had had an altercation with a person who had twitted him upon h s green-card status. In the early morning of the 17th of April he had come out of a night club and had assaulted the teaser, WONG Muk-yan. The assault took place with a beer bottle. The only injury to Mr. Wong was a small puncture wound at the back of his head. He was taken to hospital, treated and discharged. Those facts formed the basis of the first charge. 5. A taxi driver, who was outside the night club, saw the incident and chased the applicant and apparently caught him. There was nothing on the summary in evidence to suggest any bodily harm being caused to him. But the applicant had pleaded guilty to in fact causing bodily harm. In mitigation it was said -that he had pushed the taxi driver to the ground. 6. The third charge stemmed from the breaking of a window of the taxi by the applicant. Before his conviction he had paid $520 compensation. 7. We find it a little difficult to see why this matter ever appeared in the District Court. It seems to be manifestly one which could have been dealt with by a Magistrate. We note that the first charge was, until amended, assault with intent to rob. On the facts disclosed in Court there seems to be no evidence whatsoever to support a charge of that nature: 8. In passing sentence, the trial judge said that:
For myself, I am not quite sure in what manner the defendant hit the man with a beer bottle because it certainly does not appear to have caused the sort of damage that one would expect from such a blow. But accepting that a beer bottle was used in the course of the assault, I would think the judge to have been right in his reference to an "immediate custodial sentence." 9. But that having been said, the totality of sentences imposed is manifestly excessive. 10. We grant the application for leave to appeal and allow the appeal to this extent: the applicant has already served - before being placed upon bail - a period of approximately two months of his sentence. Before his conviction, his eye had been injured in an industrial accident which seems to have resulted in the loss of the eye, That is a circumstance which is mitigating. Further, we would have thought that, in the general circumstances of this case, a period in custody of approximately two months to be amply sufficient. 11. Therefore, we allow the appeal and quash the sentence of nine months and of three months on the first and second charges and substitute, therefor, such sentence as will permit the applicant to be immediately released. Representation: Applicant in person. M.J. Kenny, Esq. for Crown/Respondent. |