THE QUEEN v. CHEUNG YIN

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 460 OF 1986

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BETWEEN

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JUDGMENT

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Penlington, J.

1. This is an appeal against concurrent sentences of 2 years imprisonment in respect of three charges - two of wounding contrary to S. 19 of the Offences Against The Persons Ordinance and one of assault causing actual bodily harm contrary to S. 39 of that Ordinance.

2. The facts, which were agreed at the trial of this matter when the appellant was represented, were that he was a member of a group who on the 5th of June 1986 went to a amusement game centre in Bailey Street, Kowloon. Some were armed and they attacked members of the staff because of a dispute which had occurred between them and the 1st defendant at the trial, LEE Koon-keung, on a previous occasion. Two staff members received quite severe injuries, clearly inflicted with knives. The leader of this gang was the 1st accused, who was 18 years, considerably younger than this appellant. The appellant came at his request and although he was clearly a member of the gang and participated in this attack in that he went into the building and assaulted persons with his fists, he was not himself armed. The applicant surrendered himself to the police shortly after the incident and pleaded guilty to the offences as amended. Originally the first, two charges had been under S. 17, that is wounding with intent to cause grievous bodily harm. The applicant has a previous conviction but, quite rightly, the trial judge said that as it was long ago and was not for a related offence she would ignore it.

3. The judge called for a probation officer's report which, as Mr Poll had said in his usual clear and lucid submissions, is favourable to the applicant in that this offence does seem to be out of character. He has worked hard, has come from a broken family background and the probation report is generally favourable. However, as Mr Harris for the Crown quite properly says, while the applicant himself may not fully appreciate the legal consequences of going with other people who are armed and to enter into a joint attack with them, nevertheless he did participate. The fact that the others were armed with knives must have suggested to him that there was a very strong likelihood that serious injury would result, but of course as Mr Harris also concedes the applicant pleaded guilty to S. 19 offences and it must be assumed that there was no intention to cause grievous bodily harm.

4. The maximum sentence for this offence is one of three years imprisonment and although there were 2 counts plus one for assault occassioning actual bodily harm, clearly it was one episode. We consider that a substantial reduction must be given for his plea of guilty and for the fact, perhaps even more important, that he surrendered himself to the police. Credit must also be given for the fact that he was not armed himself. His history, as shown by the probation officer, is also in his favour and he has no relevant previous convictions. Taking all those factors into account, we think that the sentence of two years imprisonment can be reduced to one of 12 months imprisonment.

5. The application for leave to appeal against sentence is allowed. We treat this hearing as the appeal. The sentences on each count are reduced to one of 12 months imprisonment, all sentences to be concurrent.