Lam Kwok Chi and Another v. The Queen
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IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 86 OF 1973 -----------------
----------------- Coram: Leonard J. in court Date: 21st February 1973 ----------------------------- JUDGMENT ----------------------------- 1. These are appeals against sentence. On the part of the first defendant against a sentence of twelve months’ imprisonment on a conviction of unlawful wounding under Section 19 of the offences against the Persons Ordinance of another inmate of Stanley Prison and on the part of the second defendant against sentences of twelve months’ imprisonment and six months consecutive on two convictions of unlawful wounding (again under Section 19) of two other inmates. 2. The facts placed before the learned magistrate in the court below after pleas of guilty had been recorded as against the two appellants were both brief and disturbing. The victims and the appellants were prisoners serving terms of imprisonment in the Stanley Prison; they belonged to “two separate groups”. At about 17.35 hours on the 27th of December 1972 whilst the evening meal was in progress in the dining hall of the prison a quarrel broke out, in the course of which the three victims sustained wounds. The first victim, that is to say, the victim whom the first appellant admitted wounding, received stab wounds on the back of his neck and on the back of his upper chest. The second and third victims also received stab wounds; the second a wound on the right ear; the third victim a stab wound on the right cheek and on the right side of the body. It is not in dispute that the wounds in question were inflicted by implements produced before me in court. These are “home-made” or rather “prison-made” daggers of about 8 inches in length. To each of which has been fused a handle of a different metal to that forming the narrow, rounded blade. The blades have been filed to a sharp point. The facts admitted by both appellants in the court below were briefly summarised by the magistrate in the following terms:
3. Before me, in mitigation the appellants said that they had a quarrel with a group of whom the victims were members, that following earlier quarrels they i.e. the two appellants were attacked in the dining room, that their attackers and not they originally had had these vicious daggers of which they had disarmed the victims. I sought assistance from Crown counsel as to what if any evidence existed as to how the weapons got into the dining hall or by whom they were brought in. Crown counsel told me that there was no evidence as to how the weapons got into the dining hall or by whom they were brought in nor was there any evidence as to how the quarrel started or as to who the aggressors were. He further very properly brought to my attention the fact that in addition to these two weapons which were taken from the hands of the appellants three other weapons of a similar lethal nature were found on a window sill at the entrance to the dining hall. The indications were that these three other weapons had not actually been used in the fight but had been disposed of by other prisoners. What causes me considerable dismay is that there were five dangerous weapons in the dining hall on the date and time in question. I am completely at a loss to understand how prisoners can manage to bring into the dining hall –a place in which by the very nature of things fights may be likely to occur such lethal weapons as these and I consider that the matter requires if it has not already received the most urgent inquiry in the prison. 4. In the court below the first appellant was sentenced to twelve months’ imprisonment for his part in the fight but the second appellant was sentenced to eighteen months for his part. Admittedly, the first appellant injured one person only while the second injured two. Apparently none of the five prison officers in the dining hall at the time saw the inception of the fight in which these three persons were injured and on what I have been told I can only regard the two appellants as equally culpable for their part in it. I wound not consider having regard to the nature of the weapons used that a sentence of twelve months or indeed a sentence of eighteen months could be said to be excessive or wrong even though the appellants are not charged with wounding with intention to do grievous bodily harm. The use of either of the weapons produced could well have caused death. However, accepting as I must for the purpose of this appeal the suggestion of th appellants that they disarmed their victims before using the weapons, it seems to me to be immaterial to the question of sentence that the second appellant stabbed two while the first appellant stabbed one. Each was engaged in one and the same transaction and the sentence should therefore not be disparate. My view on this is reinforced by Crown counsel who has pointed out to me that according to the papers before him the wounds inflicted by the first appellant were no less in number or severity than those inflicted by the second appellant. It is only to avoid disparity that I allow the appeal of the second appellant to the extent that the two sentences imposed on him should be concurrent with one another rather than consecutive. They remain consecutive to any sentence which the second appellant was serving at the time of the incident giving rise to the charges. The appeal of the first appellant is dismissed. I direct that a copy of this judgment be sent to the Commissioner of Prisons.
Appellant in person. Mr. Corrigan, S.C.C. for Crown/Respondent. |