THE QUEEN v. KWOK CHI MING

IN THE COURT OF' APPEAL

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JUDGMENT

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McMullin, V.-P. :

1. The applicant, KWOK Chi-ming, was tried in the District Court upon two charges, one of indecent assault upon a female and one of wounding the same person with intent to disfigure her, contrary to provisions of Section 17 of the Offence Against the Person Ordinance.

2. The trial judge found the indecent assault charge not to be proved and the applicant was acquitted. He was convicted of wounding and subsequently he filed applications for leave to appeal both against conviction and sentence.

3. This morning he appears before us represented by Mr. Dinan who appeared originally only in respect of the application against sentence.

4. After a brief consultation with his counsel we were informed in the course of the morning that the applicant had withdrawn his application for leave to appeal against conviction.

5. The case was, as the judge found, an assault which occurred at the end of a tempestuous lover's quarrel. The applicant and the girl LEE Mei-sze had become acquainted in 1983 when she was working as a hostess in a ballroom. She had frequented his company while she was still working there both in the course of her professional duties and otherwise.

6. Subsequently she left that employment and took up employment as a receptionist which she held for some ten months and then went back again to her former job.

7. She met the applicant on a number of occasions thereafter and they had meals together. Although it was the tenor of her evidence that his attentions were unwelcome and that she was in a fact trying to evade him, the judge found this not to be the case.

8. It is unnecessary to go into the details of the evidence which was considered fully by the judge and his summary of the events, which resulted in a fracas on the night of the 29th of November 1984, to the effect that it was a lover's quarrel which ended up badly is one with which this court would not take issue.

9. What happened on that day was that after going round in each other's company for some time, having had a meal together and having visited shops, in the course of which the applicant purchased a dress for the girl, they parted and she went back to her home where she lived with her mother.

10. There was a phone call as a result of which the applicant formed the impression that she had somebody in the flat with her and he went round to enquire about this and also, according to him, to ask her not to take certain medicine which he had earlier given to her. It appears that he was accustomed to giving her medicine from time to time and a service which it appears she was happy to accept.

11. When he entered the premises he accused her of having had a man therein. She became excited and irritated. The judge found that what happened thereafter was precipitated by the girl assaulting the applicant by striking him on the face with a plastic coat hanger and a fight developed. Obviously it was a scene of considerable confusion, a fact which was borne out by the photographs taken by the police who came to the scene shortly afterwards. These photographs show a scene of the utmost disarray.

12. In the course of the struggle blows were exchanged and the complainant also bit and scratched him and hit him with a bottle and the heel of a shoe. The applicant snatched up a knife which was lying in the premises and inflicted upon the girl a number of injuries to her face.

13. Subsequent surgical and medical examination, as the report arising therefrom shows, disclosed that she had multiple lacerations over the face measuring variously 12 cm, 10 cm, 3 cm and 3 cm and some lacerations along her hands.

14. The applicant himself had certain minor injuries which consisted of bruises to his back and on his scalp and face.

15. It is fairly clear from these medical and surgical findings that, in the course of the quarrel, in which blows must have been fairly freely swapped, the applicant inflicted the grave injuries which are the substance of the charge laid against him. These wounds to the face of the girl required suturing and it is evident from the judge's findings that there were scars upon her face which were apparent at the time of the trial.

16. The judge called for a probation report. It may be said, without going into that in any detail, that it is on the whole extremely favourable to the applicant. It discloses that he had been in steady occupation as a dental assistant in a dental surgery. Several persons who were interviewed, including members of his family, gave him a character as a person of a gentle disposition who might however be quick-tempered. He has no previous criminal record.

17. Mr. Dinan for the applicant has raised two points upon the appeal. First he says that the sentence was in all the circumstances too severe; secondly he takes issue with certain remarks made by the judge in passing sentence. When giving his reasons the judge began by saying:

"The case is a most serious one. Cases of wounding are ever on the increase. This is particularly bad as clearly the victim and the appellant were lovers who had fallen out. The girl's face is disfigured. I do not have any doubt but that spite motivated this wounding at that moment. "

Mr. Dinan makes a point which we think is one of some substance. In so expressing himself there seems to be a certain element of contradiction in the judge's reasons. Although it may well be that cases of wounding under Section 17 are on the increase, and certainly are in themselves serious, yet one would have thought that it might well be said, to the contrary, that this, being the result of a lover's quarrel, arising ex in proviso, as the judge himself found, should not be rated amongst the more serious category of case. Indeed in concluding his reasons for sentence the judge went on to say:

"The circumstances surrounding this case take it out of the ordinary, every day, wounding type cases, such as revenge woundings, settling disputes, which enables me to keep the sentence to a minimum of 3 years' jail custody ...”

18. Having found some substance therefore in the second of the grounds, we are also of the view that the sentence was in any event too severe in all the circumstances.

19. If this had been indeed a revenge attack in which premeditation had been involved, it might well be that a sentence of that degree, bearing in mind the nature of the wounds inflicted would have been an appropriate sentence.

20. For these reasons however we feel obliged to interfere and treating the hearing of the application for leave to appeal against sentence as the appeal itself, we grant the application, and allow the appeal. The sentence of 3 years is set aside and for that we substitute a sentence of 15 months only.