Chow Wai-ching and Another v. The Queen
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CACC000990/1976
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Coram: Briggs, C.J. Date of Judgment: 28th September, 1976. ----------------- JUDGMENT ----------------- 1. The two appellants are husband and wife. They are a middle-aged couple and have four children. They are hawkers of coconut juice and chilled jelly. For some time there has been bad blood between the two appellants and one LAM Hei, who carries on a similar hawking business. The appellants were originally charged with maliciously wounding LAM Hei contrary to section 19 of the Offences against the Person Ordinance, but at the trial before the magistrate, the Crown amended the charge to one under section 39 of that Ordinance. It is for comment that the reason why this was done was probably so that the magistrate, had he been minded to do so, could have passed a suspended sentence of imprisonment. 2. The appellants pleaded guilty to the amended charge and were each sentenced to six months' imprisonment. Against this sentence they have appealed. 3. The facts are not in dispute. The victim, LAM Hei, had an argument with the appellants about a private supply of electricity to his hawker's stall. The argument became heated and LAM Hei struck the male appellant with an iron pole. Each of the appellants had a knife in their hands which they were using in the course of their business. The second appellant, the wife, had a knife which was about 15 inches long. When the first appellant was struck by LAM Hei he retaliated and, at the same time the wife, the second appellant, on seeing what was happening, went to assist her husband. As a consequence, LAM Hei was wounded. It is proper to state that he was not so badly hurt that he had to go to a hospital. It is for comment that the first appellant was also slightly wounded in the fracas. The second appellant, the wife, summoned the Police and the two appellants were arrested. 4. In another proceeding, LAM Hei pleaded guilty to wounding and was sentenced to four months' imprisonment. 5. Miss McGrowther, who appeared for the two appellants, pointed out to the court that this was a domestic quarrel over the supply of electricity and that LAM Hei had attacked the first appellant first and, not only that, but had used an iron pole, which could be described as a formidable weapon. She said that this was a case where the appellants used too much force in self-defence and that this was not a case of a premeditated attack. Further, it was normal for the two appellants to have a knife in their hands for the purpose of their trade. 6. She also drew the court's attention to the fact that this was a case of a quarrel in the heat of the moment and said that so far as the second appellant was concerned, the wife, she did what any woman would do, she went to the assistance of her husband. 7. In my view, this case could be described as a classic case for the passing of a suspended sentence. I agree that some sentence was called for and that the proper sentence was a custodial sentence, but I do not think it was necessary to pass an immediate custodial sentence. 8. Mr. Sceats, who appeared for the Crown, agreed with much of what Miss McGrowther had said and he pointed out that the police had been called at the instance of the second appellant, the wife. 9. Taking all this into consideration, I think that the correct course to take is to allow the appeal to the extent that the sentence on each appellant will be reduced so as to allow each appellant to be released immediately.
Representation: Miss McGrowther (D.L.A.) assigned for both appellants. Sceats for crown/respondent. |