R. v. SIT CHU NAM AND OTHERS

HEADNOTE

Appeal against conviction - wounding with intent to do grievous bodily harm contrary to section 17 Offences Against the Person Ordinance (Cap. 212) - facts capable of showing the lesser offence of wounding under section 19 - conviction unsafe and unsatisfactory.

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J U D G M E N T

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Litton, J.A.:

1. Earlier this morning we gave leave to the four applicants to lodge their applications for leave to appeal out of time. I now deal with their applications for leave to appeal against their convictions under section 17 of the Offences Against the Person Ordinance Cap. 212.

2. The applicants were convicted by His Honour Judge Hartmann in the District Court of wounding one Leung Wing-hang with intent to do grievous bodily harm. In addition, the second applicant Chan Cheung Yip was convicted of assault on Miss Cheng Fai Yee, occasioning her actual bodily harm. On the section 17 charge the four applicants were sentenced to six months' imprisonment. On the assault charge the second applicant was sentenced to three months' imprisonment concurrent with the other sentence.

3. The incident took place at about 10.30 on the night of 9th November 1991 at Arran Street Kowloon. The two victims Leung Wing-hang and his fiancee Cheng Fai Yee were walking along Arran Street opposite the Li Po Chun Centre when they were insulted by a group of men who hurled crude remarks across the street. Mr. Leung made some sharp reply and then the couple walked on, only to be set upon by about four or five men about 20 feet down the road. The attackers used a variety of objects: one had a folded stool, another a bottle and a third a wooden stick. Luckily a number of police officers on duty nearby intervened and prevented serious injury to the two victims. The actual injuries sustained by the victims were lacerations and contusions to the head and upper parts to their bodies.

4. Mr. Mullick, counsel for the applicants, accepts that there was an attack on the victims by the four applicants and that on the facts they were guilty of the offence of wounding under section 19 of the offences Against the Person Ordinance. The short question upon this appeal is whether the applicants were properly convicted of the much more serious crime of wounding with intent to do grievous bodily harm under section 17 for which the maximum term of imprisonment is life.

5. Upon the facts of the case as found by the judge it was open to him to conclude that the incident was no more than a flare-up of violence, not a pre-planned attack; that it arose in the heat of the moment after insults were exchanged. Upon these facts, arguably, the applicants did not intend to seriously injure the two victims. What actually happened was that after the attack started there was much pulling and shoving but the victims did receive several blows: blows which caused slight injuries when the police intervened and three of the four applicants were arrested.

6. The judge in sentencing the four applicants to six months' imprisonment - an exceptionally low sentence for the serious crime of wounding with intent to cause grievous bodily harm - said that he was prepared to accept that this was not a pre-planned attack. If the Judge thought it might have been a spontaneous flare-up the question immediately arises as to whether he had directed his mind properly to the specific intent necessary to ground the conviction under section 17.

7. The judge was understandably struck by the happy coincidence of the timely arrival of the police patrol which in all likelihood saved the victims from really serious injuries. But that does not necessarily mean that each of the four applicants had, in attacking the victims, intended to do really serious bodily harm. There was at least a possibility that the attack might have subsided of its own accord.

8. It is true that the judge specifically mentioned section 17 at the commencement of his Reasons for Verdict but in considering the case of each of the four applicants the formulation of his reasons is equally consistent with the lesser crime under section 19. For instance in relation to the first applicant this is what the District Judge said:

"Dl may not personally have wounded Leung but in joining in a concerted attack upon Leung, using or attempting to use a weapon and in the knowledge that others were using weapons too, he must have appreciated the likelihood that Leung would suffer wounds and, as such, was part of a joint enterprise to cause him malicious injury by wounding. I am accordingly satisfied beyond reasonable doubt that D1 is guilty of the wounding count as charged."

9. Mr. Cross, leading counsel for the Crown, makes the point that a District Court judge is not required to set out the whole of his evaluation in his Reasons for Verdict This I would accept. On the other hand where the matrix of facts is open to one of two conclusions, as in this case, then in my view the judge must address his mind and be seen to address his mind to the specific ingredients of the offence if the conviction for the more serious crime is to be sustained.

10. Mr. Cross in his argument has referred us to the case of Tsang Kin Ming Cr. App. 214 of 1992. But there the circumstances were different. A gang had set out on a joint enterprise to beat up rival youths. They had gathered together and set out armed with bats. Upon those facts a finding of an intent to inflict grievous bodily harm is easy to make. In this case what happened was, arguably, a flare-up of violence and objects were picked up at random to be used as weapons. It is at least open to a court to find that the applicants did not have the specific intent necessary to ground the conviction under section 17.

11. In my judgment, having regard to the equivocal findings in the court below, and to the reasons the learned judge gave for the very lenient sentences of six months, the convictions of the applicants under section 17 are unsafe and unsatisfactory. I would allow the applications for leave to appeal, treat this as the appeal, set aside the convictions under section 17 and order that the applicants do stand convicted of the lesser offence of wounding under section 19.

12. In these circumstances the sentence of each of the applicants of six months' imprisonment would stand. I consider the applicants extremely fortunate in the circumstances of this case. For even on the lesser charge under section 19, and upon the circumstances of this case, the sentence of six months I regard as exceptionally lenient; it would have been wholly unsustainable had the conviction under section 17 been upheld.

Mortimer, J:

13. I agree and I have nothing to add.

Sears, J:

14. I agree.