Cheung Kam v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 239 OF 1973

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JUDGMENT

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1.  This is an appeal against sentence. The Appellant, a prisoner in Stanley Prison, pleaded Guilty to unlawful and malicious wounding of a fellow prisoner.

2.  The facts placed before the learned magistrate were in the form of a written statement which indicated that there was a quarrel in a cell in the prison and that the Appellant stabbed the victim in the back with what is described as “a sharpened iron bar”.  This statement was apparently read to the Appellant in the court and the facts were admitted.  The learned magistrate then asked the Appellant “Where did you get weapon?”  He answered “Can find it anywhere”.  The magistrate asked “How was it sharpened?”, and the Appellant answered “On the ground”.  In his Statement of Findings the learned magistrate said:

“The weapon appeared to me to be a piece of thick fencing wire with one end sharpened to a point”.

From this it is apparent that a weapon was produced in the court below and the Appellant agrees that this was so.  There is a weapon in this Court.  The appellant admits that this weapon was produced in the court below, but he says it was not the weapon which was used for the commission of this offence.  It is unfortunate that although there was an exhibit in the court below it was never properly marked and therefore its identity is not beyond dispute.  The contention of the Appellant has been that the weapon in fact used was a piece of thin, soft wire about 3½ to 4 inches long and not a lethal weapon such as the one which has been produced in this Court.

3.  Particularly having regard to the incidence of violence within the prison in recent months it seemed to me to be of importance that the true facts should be established beyond doubt and I therefore adjourned the case for evidence to be taken.  I have now heard the officer from the prison who states that he saw the stabbing and picked up the weapon which was thrown down by the Appellant.  He described it as being made from a piece of iron about seven inches long, of the same width throughout its length and he indicated that width to be something in the region of 1/3 inch with a handle made of cloth, which he described as some grayish, yellowish, dirty cloth.  He said that there was no other weapon seen at the scene and he has identified the weapon which has been produced in this Court as being the weapon.  It is of approximately the length indicated by the witness; the blade is of approximately the width he mentioned; the piece of metal is not of the same width throughout its length, although that part which is visible is of the same width throughout its length; the handle is in fact of paper wrapped in plastic.  Whether it is, as the learned magistrate thought, a piece of “thick fencing wire”, I am not prepared to say, although I would have some doubt about it.  The Appellant has given evidence and he says that he has never seen this weapon before.  He says that what he used was a piece of wire for cleaning a smoker’s pipe – about the thickness of a pencil lead.  I do not, of course, have any medical evidence and I know only that there were two stab wounds.  I know also that the victim was in hospital from 9th February to 20th February. I believe that this was the weapon which was used. 

4.  The incident took place apparently as a result of nothing more than an argument over two packets of cigarettes.  It is apparent that the victim was very seriously injured.  The Appellant was in the prison serving a sentence of ten years’ imprisonment for robbery with aggravation and possession of arms.  He had a previous conviction for robbery with aggravation and a conviction for an assault on a police officer, in addition to other offences which are not material.

5.  No court can regard with anything but great seriousness violence of any kind in a prison – even less where lethal weapons are used.  In my view the sentence imposed by the learned magistrate was well merited and there is no ground whatever upon which I can interfere.  I have seriously considered whether the sentence should not run from today, but in view of the length of sentences still to be served I make no such order.

26th April 1973.