THE QUEEN v. NG WAH-KAN

IN THE COURT OF APPEAL

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J U D G M E N T

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Clough, J.A. :

1. After a trial before His Honour Judge Daniell sitting as a Deputy Judge of the High Court and a jury, the applicant was convicted on 2 counts of wounding with intent. On the 17th September- 1987 the judge sentenced him to 12 years' imprisonment on each count and ordered the sentences to be concurrent. The applicant now seeks to appeal against his conviction and sentence. He appears in person on the appeal against conviction but is represented by counsel on the appeal against sentence.

2. The Crown contended at the trial that in the case of both counts the victim had been stabbed by a third party at the instigation of the applicant The victim who was the subject of the first charge was a man called LI Siu-yung. The case for the Crown was that on the 31st July 1935 LI was stabbed in the back by FOK Hung-lan after a man called HUI Chi-kwei had refused to carry out the attack. According to the evidence of Hui the applicant had pointed out the victim, Li, to him in a restaurant, told him Li was the applicant's enemy and asked him to stab Li until he collapsed with a file provided by the applicant.

3. Hui said he refused to do what the applicant, required of him, whereupon the applicant said he would go and look for someone else and left Hui to watch the victim Li in the restaurant. The applicant subsequently returned with Fok to whom Li was pointed out in the restaurants. At the instigation of the applicant Fok then followed Li out of the restaurant and stabbed him in the back with the file after being told by the applicant to use great force. The medical evidence was that Li received a wound 5 cm deep at the back of the right side of his chest He was in hospital for 6 days and is fortunate that the injury did not endanger his life.

4. Fok admitted his part in the wounding. Before the trial he had been sentenced to 9 months' imprisonment for the offence in question, Both Fok and Hui had criminal records and Hui had been offered conditional immunity by the Crown before giving evidence for the Crown.

5. As regards the second count on which the applicant was convicted, the victim was a man called LEUNG Siu-biu who was stabbed by WONG Siu-hung on the 2nd February 1986 at the instigation of the applicant and acting in concert with WONG Yuk-kam and NG Pui-sting, All these accomplices gave evidence for the Crown, WONG Yuk-kam, who is an old man, said that he had been told by the applicant to follow the victim Leung to where he lived and to point him out to WONG Siu-hung. His evidence was that he followed Leung to a noodle shop and then reported his whereabouts to the defendant and NG Pui-shing and WONG Siu-hung. The latter two men then went with WONG Yuk-kam to the noodle shop where he pointed out Leung who was stabbed by WONG Siu-hung with a knife which had been supplied by the applicant. This was admitted by WONG Siu-hung,

6. NG Pui-shing said that the applicant had first given him the knife and told him to go and stab Leung who was the applicant's enemy, but NG Pui-shing had refused, saying that he had just come out of prison. He then passed the knife to the other accomplice WONG Siu-hung who actually did -the stabbing

7. The medical evidence showed that Leung sustained a 3 em long vertical stab wound in the back which was 2 cm deep and caused contusion of muscles which were partially cut. It seems that the knife was left embedded in the victim's back. He was treated in hospital for 4 days and then discharged and referred to the Out-patient Clinic

8. All three accomplices whose evidence was relied upon had bad records and they had been granted conditional immunity from prosecution by the Crown

9. In an impeccable summing-up on both counts the judge gave the jury the standard accomplice warning He emphasised that the witnesses relied on by the Crown had bad records and that all of them except Fok had -received conditional immunity from the Crown.

10. The defence of the applicant was put clearly by the judge to the jury The applicant denied all knowledge of the incidents in question. He had also claimed that the Crown witnesses were acting under duress and threats from the police, that they were all criminals themselves and were pointing the finger at him to save their own skins in reliance on the immunity which had been offered to them by the crown,

11. The judge was careful to remind the jury that although the applicant had paid Fok $1,000 when he came out of prison, the applicant had explained this payment was not for the stabbing of Li but related to the use of premises belonging to Fok during his absence.

12. The jury having convicted the applicant on both counts after a faultless summing-up there is nothing in the applicant's 11 grounds of appeal which justifies his being given leave. In substance he simply repeated his defence which the jury rejected at the trial. Today the applicant has said nothing material to add to those grounds. His application for leave to appeal against conviction is therefore dismissed,

13. Mr. Stirling for the applicant has contended that the concurrent sentences of 12 years' imprisonment passed on the applicant are manifestly excessive. He contends that the fact that the applicant instigated these offences is not an aggravating factor because of the real or imagined grudge borne by the applicant against the victims. He points out that 12 years' sentence is the upper limit of sentencing for wounding with intent particularly where there is no aggravating element of robbery or an additional sexual offence. He relies on the fact that each victim received one blow albeit with a potentially lethal weapon and that this is not a case of repeated attacks. He accepts that it is proper to approach the matter in accordance with the totality principle but contends that in that event 6 to 7 years would normally be the standard of sentence appropriate for a wounding of this kind with one blow.

14. He relies on disparity in relation to the first count because Fok, who actually struck the blow, received only 9 months for his part in the wounding. In our view this is not a situation where the disparity argument should prevail in relation to the first count in respect of which Fok received only 9 months' imprisonment under, I apprehend, section 19 of the Offences against the Person Ordinance (Cap. 212).

15. As a general rule in the absence of most exceptional circumstances the disparity argument is available only when the allegedly disparate sentence is imposed on the appellant at the same time as the other lighter sentence is imposed on another offender Stroud⁽¹⁾

16. In the present case the applicant and Fok were not sentenced at the same time. Furthermore the applicant, who was the instigator of the offences, was being sentenced for 2 offences on a totality basis. There were not therefore any most exceptional circumstances which in the words of Lawton L.J. in Potter⁽²⁾ would induce right thinking members of the public to say "there is something wrong here".

17. In our judgment the sentences were appropriate and fitting for these offences committed by a man of 45 who has shown no remorse, has a criminal record and who, furthermore, instructed those who did the relevant wounding to make a good job of it. The effective term of imprisonment is, as Mr. Stirling rightly contends, at the top of the bracket for this type of offence involving serious violence but, in our view, it is not to be faulted. Both victims were very fortunate that they were not put at risk of death or permanent incapacity. The attacks were premeditated and vicious and they were carried out with lethal weapons The public interest clearly requires that offenders who decide to make use of persons of bad character with criminal records for violence to inflict really serious injury on those they call their enemies should be visited with condign punishment sufficient not only to achieve a substantial measure of retribution but also to protect the public by deterring others from committing this type of offence

18. The pursuit of revenge by violence will not be tolerated by the law. Furthermore the pursuit of revenge by the cowardly employment of criminals to commit acts of serious violence introduces an additional aggravating factor which requires to be reflected in the sentence imposed.

19. When passing sentence the judge observed:-

"What you have done is thoroughly wicked and depraved. I regard you as a dangerous man and in my view the only safe course is to impose a sentence which will keep you out of the way for a long time.''

20. We agree with the judge^'s approach to the applicant's conduct. The sentence was fully justified. The application for leave to appeal is accordingly dismissed.

(1) (1977) 65 Cr. App. R. 150

(2) [1977] Cr. L. Rev. 112