The Queen v. Li Fu-keung

CACC000084/1984

[Substitution of conviction of causing grievous bodily harm for conviction of wounding.]

BETWEEN:

Coram: Roberts, C.J., Yang and Barker, JJ.A.

Date: 17th April, 1984.

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JUDGMENT

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Roberts, C.J.:

1. The applicant, LI Fu-keung, was convicted of wounding with intent; contrary to section 17 of the Offences against the Person Ordinance (Cap. 212) and was sentenced to three years' imprisonment. He seeks leave to appeal:-against both conviction and sentence.

Facts

2. On 30th October, 1983, Mr. CHAN Shing-ming was walking through Kowloon on his way to Temple Street, when he was suddenly attacked by three persons, one of whom was the applicant, who grabbed hold of him round the neck, while the two other persons attacked him.

3. Mr. Chan was struck with a water-pipe and a folding stool as a result of which he suffered a fracture of the greater trochanter of the left femur. The applicant told Mr. Chan that he was being attacked because Mr. Chan had bullied the applicant's younger brother.

Conviction for unlawful wounding

4. The applicant was charged with unlawfully and maliciously wounding CHAN Shing-ming with intent to do him grievous bodily harm, contrary to section 17 of the Offences against the Person Ordinance.

5. There was abundant evidence from which the judge could conclude that the assault had taken place on Mr. Chan, that he had suffered grievous bodily harm, and that the applicant had taken part in the attack.

6. The only matter that has caused us any concern is the fact that the medical evidence does not establish that there was any breaking of the skin of the victim, which must be established before a defendant can properly be convicted on a charge of wounding.

Substitution of conviction of another offence

7. The effect of Section 18 of the English Offences against the Person Act, the equivalent of Section 17 of the Hong Kong Ordinance, was considered in R. v. Naismith⁽¹⁾ in which Ashworth, J., giving the judgment of the Courts - Martial Appeal Court, commented -

"So far as the intents specified in s.18 are concerned, they are variations of method rather than creations of separate offences in themselves. It is probably true to, say that the species of assault mentioned in that section, of which there are three, are each in themselves different offences, that is to say wounding, causing grievous bodily harm and shooting."

8. Section 17 of Cap. 212 can therefore be said to create three different offences, even though they are comprised within the same section and there are alternative methods of committing each of them.

(1) [1961] 2 A.E.R. 735.

9. In a recent very similar case, this court exercised the power conferred on it by section 83A of the Criminal Procedure Ordinance to substitute a conviction for another offence if it appears to the court that the jury must have been satisfied with the facts which proved the accused to be guilty of that other offence.

10. There can be no doubt that the evidence established that grievous bodily harm was sustained by the victim and that it was inflicted with the intent alleged in the charge.

11. We therefore give the applicant leave to appeal against his conviction. We quash his conviction for wounding with intent to cause grievous bodily harm and substitute a conviction of causing grievous bodily harm with intent to do grievous bodily harm.

12. The Crown may think that this difficulty can be avoided in most cases by charging a defendant with causing grievous bodily harm with intent rather than by wounding with intent.

13. The sentence of three years' imprisonment is an entirely proper one for a very serious assault. We have no hesitation in refusing leave to appeal against sentence.

Representation:

Applicant in person.

B.M. Ryan, Senior Crown Counsel, for Crown.