THE QUEEN v. LEE WING

IN THE HIGH COURT OF JUSTICE

HONG KONG

CRIMINAL APPEAL NO. 589 OF 1987

(On Appeal from D.C.C. 728/87)

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J U D G M E N T

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Jones, J.

1. The applicant Lee Wing seeks leave to appeal against his sentence of three years imprisonment by Judge Leong in the District Court for an offence of wounding with intent. He was convicted on the 2nd November 1987 when he pleaded guilty to the charge and, after the judge obtained a probation officer's report and a psychiatric report, sentence was imposed on the 18th November 1987.

2. The offence was committed on the 20th August 1987 at about 10:30 a.m. at the Lower Ngau Tau Kok Estate when the applicant, who was a fruit hawker, attacked with a melon knife a foreman of the Housing Department who was responsible for controlling hawkers on the estate. It appears that the applicant had refused to heed a warning given to him earlier to move some baskets containing melons outside his stall which had been causing an obstruction with the result that the foreman had instructed his squad to seize them.

3. The foreman, as a result of this attack, suffered serious personal injuries to his left hand that included the loss of half of his left middle finger and the loss of flexion to the little finger.

4. After the offence the applicant could not be located but he surrendered voluntarily to the police about four days later.

5. Mr. Plowman who has appeared today on behalf of the applicant, has submitted that the starting point of the judge when imposing sentence, which was a period of three years and nine months, was too high; secondly that insufficient consideration had been given by the judge to substantial mitigating factors present and in particular, that little or no consideration had been given to the acute, emotional and domestic stress that the applicant was labouring under at the time of the commission of the offence. A general complaint was also made that insufficient discount was given for his plea of guilty. Mr Plowman contended that a starting point of two to two and a half years should have been adopted instead of the three years and nine months adopted by the trial judge.

6. He also submitted that the judge had not taken into account the mitigating factor of the voluntary surrender by the applicant to the police, his remorse and clear record.

7. However, the main submission made by Mr Plowman is to the effect that the weight given to the applicant's background was not properly considered by the judge.

8. So far as the applicant's background is concerned, the probation officer's report reveals he was brought up in a poor family. He came to Hong Kong with his family as an illegal immigrant over twenty years ago, but his mother was drowned during the journey. Apart from a difficult relationship with his father the applicant's own domestic life has been extremely unhappy  He is a married man, aged 38 with five children. However, his married problems have resulted in two unsuccessful suicide attempts.

9. At the time of the commission of this offence, the applicant was under psychiatric care for neurosis and has been so for several years. In fact we have been told that he is still under psychiatric care.

10. Mr Plowman drew our attention to certain authorities which we have taken into account when coming to our decision on the matter of sentence. However, we do not agree with him that the starting point for offences of this nature should be a period of two to two and a half years, but rather a period of four years, this being an attack using a dangerous weapon on a public officer who was doing no more than carrying out his duties.

11. In this case, the main factor that we take into account with regard to the reduction of sentence that was imposed is the background of the applicant to which I have just referred. This does not detract from the fact that an attack upon a public officer in the performance of his duties is a serious offence that requires the Courts to give adequate protection in the matter of sentencing. Taking into consideration all the matters that have been addressed to us, we feel however that the judge did not give particular recognition to the applicant's background. Having regard to the applicant's plea of guilty, his voluntary surrender to the police and in particular his background, we grant leave to appeal against sentence, treat this as the hearing of the appeal and reduce the sentence from one of three years imprisonment to one of two years imprisonment. To that extent, the appeal is allowed.