R. v. LEE SUK MAI

IN THE COURT OF APPEAL

1996, No. 571

(Criminal)

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J U D G M E N T

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Mayo J A giving the judgment of the Court:

1. The applicant seeks leave to appeal against the total sentence of 20 months' imprisonment and compensation of $10,000 ordered by the judge in respect of two convictions under s29(c) of the Offences Against the Person Ordinance, Cap 212 for the throwing of a destructive substance with intent and a conviction for assault occasioning bodily harm contrary to s39 of the Ordinance.

2. All of the charges arose out of the same incident. The applicant had a dispute with his neighbours over rights to his and their land. These neighbours were the victims of the offences. Madam Leung who is in her fifties was the victim on the 1st count and her son Mr Ng was the victim of the 2nd and 3rd counts.

3. On 16 June 1996 it would appear that Madam Leung who runs a chicken farm had a problem with the drainage from her land. The drainage pipe which runs either under or in the vicinity of the applicant's land was blocked.

4. There was a dispute between the applicant and the victims concerning the manner in which remedial work would be undertaken. Two days later Madam Leung and her son were seen by the applicant digging in the area where the pipe ran. Some 30 minutes later the applicant came out with a bucket full of boiling water. He splashed half of it on the exposed flesh of Madam Leung and the other half on the exposed parts of Mr Ng's body. Mr Ng went over to attend to his mother and the applicant started belabouring him with an iron pipe. Mr Ng ran away and was pursued by the applicant and was restrained by the intervention of another neighbour. Mr Ng suffered bruising and lacerations as a consequence of the 2nd assault. The incidence was reported to the police. The stance adopted by the applicant has been remorseful. He pleaded guilty to the three charges. The trial judge Her Honour Judge Beeson called for a probation officer's report and reports from two psychiatrists.

5. All of these were favourable to the applicant. There was a suggestion that there had been a long standing feud between the parties and that the applicant might have felt humiliated and acted in desperation.

6. So much for the material which was before the judge. In passing sentence the judge considered that she had no alternative but to impose a custodial sentence. She did however give a full discount for the pleas and an additional discount for the applicant's previous good conduct. His age had been given as 57. When the judge was passing sentence she referred to the fact that there had been a suggestion that the applicant was 10 years older than that. She was not prepared to take cognisance of that.

7. Mr Mitchell-Heggs has lodged detailed perfected grounds of appeal on the applicant's behalf.

8. He contends that the judge has not attached sufficient weight to the various mitigating factors he refers to. In particular he submits that the circumstances of the domestic feud between the neighbours should have been ventilated in greater detail. Had this been done it would have been evident that the applicant had been acting under extreme provocation. He also contended that the first two charges were not as serious as might appear to be the case. They refer to an intent to maim which he contended is clearly more serious than an intent to burn. Finally he criticised the judge for her failure to accept that the applicant claimed to be older than his age appearing on his identity card.

9. The first point which has to be made is that the judge had to sentence the applicant on the basis of the admitted facts. On these facts she was aware of the background situation between the neighbours. Even if there was provocation this could not possibly justify the extreme measures which were taken by the applicant. This point needs to be considered in conjunction with the contention that to burn a person is not as serious as to maim them. This would seem to be a matter of semantics. It remains a fact that on the material which was before the judge both victims suffered serious injuries. There were the 1st and 2nd degree burns on their bodies and some of the scaring will be permanent. It is impossible to escape coming to the conclusion that the action taken by the applicant was totally disproportionate to what was required and was of a serious nature.

10. As to the submission concerning the applicant's age it is difficult to see how this would have had a material bearing on the sentencing process. Even assuming that the applicant was aged 67 rather than 57 it would have been necessary for the judge to take a serious view of this matter.

11. The sentences which were imposed were in no way either manifestly excessive or wrong in principle. This application is dismissed.