Yuen Tak-chung v. The Queen

CACC000797/1982

BETWEEN

_________

Coram: Hon. McMullin, V.-P., Li and Silke, JJ.A.

Date: 9 November 1982

__________

JUDGMENT

__________

McMullin, V.-P.

1. The Appellant appeals against a sentence of three months' imprisonment imposed upon him in the District Court following upon his Plea of Guilty to a charge of wounding with intent. The facts may be briefly stated. The Defendant is the proprietor of a store in Tai Wan Shan, Hung Hom. On 29th December two men entered his store and demanded $2C from him. The Defendant was then together with his brother in the store. After the Defendant had refused to pay them one of them snatched some money from a money box.  One of them then used a chair to attack the Defendant and his younger brother. The Defendant was struck with the chair.

2. The Defendant picked up a bread knife about 20" long and the two intruders fled. He chased one of these men who entered a restaurant in the vicinity where, according to the agreed facts, the intruder fell down. The agreed facts then continue in this way: "The Defendant then fought with the victim and chopped him with the knife several times as a result of which the victim suffered injuries to his head, left forearm, back and left knee."

3. Later examination disclosed that most of those injuries were of a superficial character though there was a more serious injury to the left knee where a tendon had been severed.

4. The intruder who was thus seized and wounded was, we are now informed, later brought before the court and charged with the very robbery carried out by him on the occasion which I have described. He had received a sentence, we understand, of 2.5 years for that offence.

5. In passing sentence upon the Appellant the District Judge was very clearly aware of the strong mitigating circumstances which applied to the acts of the Appellant. He wished to impose a suspended sentence but was unable to do so because of the relevant provisions in the Criminal Procedure Ordinance. In the event he thought that a three months sentence was obliged in view of what he clearly regarded as an instance of excessive self-help.

6. Mr. Fenton in presenting the appeal asks us to say that the Judge did not sufficiently take into account the fact that these injuries were inflicted in the course of a struggle. He suggests that it is possible that he imposed this sentence upon a view which regarded the Defendant as merely somebody pursuing the intruder and chopping him without any struggle first taking place. While it is not entirely clear that that was the view taken by the District Judge we are satisfied, on the concession made by the Crown, that there was a struggle between the intruder and the Defendant in the course of which these injuries were inflicted.

7. It may be that in restraining his intruder the Defendant was somewhat over- enthusiastic in the way in which he wielded his knife but a man under such circumstances cannot be asked to gauge too nicely the extent of the violence which he feels is necessary to apply in order to restrain the departure of a person who has just committed a serious crime against him.

8. We do not think that the authorities which have been cited can very much further our appreciation of the event. We are satisfied that, although there was undoubtedly an element of excess in the force, the surrounding circumstances are such as to justify our interfering with the sentence.

9. I should perhaps add here that those circumstances include the agreed fact that this Defendant had on previous occasions been harassed in a very similar way by persons endeavouring to extract money from him, That is a not unfamiliar circumstance and frequently results in charges of blackmail being laid against persons who so behave.

10. In all the circumstances which have been put before us we think that the imposition of a sentence of imprisonment was not appropriate. We will set aside that sentence and we will grant an absolute discharge and not record a conviction.

11. I should perhaps add that we take this course having regard to the special circumstances to which I have already referred. Nothing that we have said here should be taken by anyone to imply that excessive self-defence is something over which this Court would invariably stand. Obviously there will be circumstances in which this lenient view would be quite inappropriate and where such a sentence as was here imposed would be perfectly proper.

Representation:

J.G. Fenton (H.M. So & Co.) for Appellant.

J. Duffy for Respondent/Crown.