THE QUEEN v. LAM SEK LUN

IN THE COURT OF APPEAL

1987, No.474
(Criminal)

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J U D G M E N T

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Power, J.A.:

1. The applicant was found guilty after trial of a charge of criminal damage and a charge of wounding. He was sentenced to three years on the 1st charge and twelve months on the 2nd charge, the sentences to be served concurrently. He now appeals against those sentences.

2. The evidence established that a group of men invaded the Lucky Mahjong School, damaged property therein and assaulted and wounded two of the employees. The men were armed with axes and carried paint which was used to damage the furnishings of the school.

3. Mr. Murray who appears for the applicant takes no issue with the sentence of the 12 months imposed for the wounding but submits that the sentence of 3 years on the charge of criminal damage was excessive.

4. The applicant was arrested while he was running away from the school and was then brought back to the scene where the damage occurred.

5. The trial judge when sentencing said:

“However, he did gang together with these other people to go and create this public disturbance. It requires very little experience of what was on in Hong Kong to be aware that a disturbance like this can very easily lead to serious injuries. An enterprise like this carries inherently within itself the danger that some of the victims will resist and serious injuries will be caused, it also carries inherently within it the risk that police might arrive at the scene.

There is no indication, and I accept that none of these - the gang who took part in this were armed with anything other than axes and cans of paint, but in incidents like this, it's not unusual for police to arrive and for there to be a shooting and perhaps an innocent bystander injured. Fortunately, these matters did not occur in this occasion.”

6. It has been submitted that there was no evidence to establish the intention behind the attack and that we should not speculate in this regard to the detriment of the applicant. There is some force in this submission. We cannot help but remark when making that observation that the applicant could very easily, had he been prepared to do so, had thrown some light upon this matter. We are satisfied that the proper approach in such circumstances is to say that whatever the intention of the gang the effect of the attack, which they must have foreseen, would, without any doubt, be to put the employees and the owners in fear. It is true that there is no evidence that it was a triad attack. It must, nonetheless, be dealt with upon the basis that it was a planned attack by a criminal gang which the perpetrators must have foreseen would have the effect of putting the victims in fear. We have been referred to English decisions in Thomas on Sentencing but we do not find them of any real assistance.

7. The trial judge was right in our view to regard this as a serious offence warranting a substantial period of imprisonment. Nothing has been advanced to persuade us that the sentence of 3 years was in any way excessive.

8. Leave to appeal against sentence is therefore refused.