THE QUEEN v. WU WING KIN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 539 OF 1989

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BETWEEN

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JUDGMENT

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Bewley, J. (Giving the Judgment of the Court)

1. This is an application for leave to appeal against sentences imposed by His Honour Judge Caird on 11th October 1989 in the District Court on the applicant's conviction for assault with intent to rob. The assault had occured on 11th May 1989.

2. The victim was in a cubicle in a ladies' lavatory in Southorn Garden Centre, when the applicant opened the door, threatened her with an 8" paper cutter and demanded $500 and her valuables. Outside the cubicle the victim snatched the paper cutter, cutting her hand in the process, and succeeded in throwing it away. When she tried to escape she slipped and fell; the applicant retrieved the paper cutter and they struggled until passers-by came to her assistance. The applicant was subdued and later arrested. The victim also suffered an injury to her leg.

3. The applicant is 35 and has 7 previous convictions including 3 for robbery. He was sentenced to 2 years and 9 months for the assault, and a 3 months suspended sentence, imposed on the 13th September - one month before his conviction in this case - for a burglary committed on 8th of that month was activated and ordered to run consecutively.

4. The applicant rightly complains about the activation of the suspended sentence. An offender's liability to serve a suspended sentence is dependant on his subsequent conviction for an offence committed during the operational period of the sentence.

5. In his grounds of appeal the applicant says that his wife has to undergo surgery, which would leave his sons without parental care.

6. We do not consider this is sufficient reason to interfere with the sentence of 2 years and 9 months, which was far from excessive for this offence. But we are satisfied that the suspended sentence was wrongly activated. Leave to appeal is therefore granted and the activation of the suspended sentence quashed. The appeal is allowed to that extent.