Chan Yuen Kwan v. The Queen
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CACC000089/1976 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 89 OF 1976. -----------------
----------------- Coram: Huggins, J. Date of Judgment: 13th February 1976. ----------------- JUDGMENT ----------------- 1. This Appellant was charged with assault occasioning actual bodily harm and with wounding. He was sentenced by the learned magistrate to three months' imprisonment and six months' imprisonment consecutive. He appeals against those sentences. 2. The offences were quite distinct. The victim in the first charge apparently had agreed to buy something from the Appellant. He was unable to pay the agreed amount on the proper date and gave the reason that he had been robbed some days before. The Appellant flew into a rage and is alleged to have struck the victim. The Brief Facts of Case, which were admitted by the Appellant, say that the victim sustained injuries on the neck. However, some 2 ¾ hours later, when the victim was examined by a physician, he found nothing at all. As the learned magistrate rightly pointed out, one of the serious aspects of the present case is that the two victims were both elderly men, one aged 64 and one aged 70. 3. In his Reasons the learned magistrate said that on reflection he would probably have passed concurrent sentences if called upon to pass sentence on the day that he wrote his Reasons. With respect I do not think that would have been right, for the reason that I have already given: the offences were clearly separate and distinct, and I shall treat them as such. That being so I incline to the view that a sentence of three months' imprisonment was unduly harsh on the first charge. 4. As to the second charge, the Appellant agreed that he used a ball-point pen to injure the man of 70. The Appellant now says that the old man started a fight when he was asked to move, but no suggestion of this was ever made before the magistrate. It was agreed that there was an argument and I am not prepared to accept at this stage that the old man started a fight. I think the sentence of six months' imprisonment was justified. 5. The question then remains, What ought to be done about the first charge? It was, I think, a less serious assault than the magistrate may have been led to believe by the admission and it may well be there was a small measure of provocation. Nevertheless the Appellant should not have taken the law into his own hands and certainly ought not to have struck a man of 64 as he did. 6. In all the circumstances I think justice will be done if I substitute for the sentence of three months' imprisonment one of one week's imprisonment. The sentence of six months' imprisonment will stand. 13th February 1976. Representation: |