THE QUEEN v. LEUNG KAM YIM

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The applicant who was convicted of wounding with intent to cause grevious bodily harm by Judge Yeung in the District Court applies for leave to appeal that conviction.

2. The evidence given on behalf of the prosecution was that in October 1989 the victim, a Miss Tsui, who had been the applicant's girl friend for almost three years, terminated the relationship between them. She testified that in December of that year while she was working at the reception counter of a department store the applicant suddenly appeared and spoke to her colleague, a Miss Lee. He then turned to Miss Tsui and accused her of being nosy and gossipy. When she made no reply the applicant suddenly produced a knife and, rushing behind the counter, seized her by the neck with his left hand. She became very frightened and instinctively grabbed hold of it in order to protect herself. The applicant then released his hold on her neck and, when she let go the blade, thrust the knife towards her abdomen. Again she grabbed at it in an attempt to protect herself. In the course of each effort to ward off the knife she suffered cut wounds to both hands, four to her left hand and two to her right hand. A male colleague then intervened and persuaded the applicant to desist.

3. One of Miss Tsui's colleagues, a Miss Lee, confirmed her testimony. She told the court that when Miss Tsui was attempting to ward off the knife the applicant struggled with Miss Tsui and attempted to stab her. Another colleague, a Miss Kwok, confirmed that the applicant was trying to stab Miss Tsui who, in an attempt to save herself, grabbed hold of the knife as it was being pushed towards her chest. Another colleague, a Mr. Chu, had his attention drawn to the attack by shouts of alarm from some of the female staff. He testified that he saw Miss Tsui holding on to the knife and that it was moving backwards and forwards between Miss Tsui and the applicant.

4. The applicant's version of the incident was that he went to the store to see Miss Tsui and that he took the knife with him. He asked her to renew their relationship, but she ignored him. On being asked whether she had taken up with a new boy friend two days previously, she nodded in reply. When he then demanded "Are you not going to be with me any more even if I die", she responded by shaking her head. He then drew out the knife from an upper pocket, went behind the counter and grabbed her by her neck with his left hand while his right hand was holding the knife with the tip of the blade pointing away from her. She seized hold of the blade with both hands and asked him to let go of her. He replied "How can I let go of you if you don't let go of the knife". According to the applicant Miss Tsui attempted to pull the knife towards herself as he was trying to pull it away from her. He said that he then released the grip on her neck, but that, as soon as he did so, she ran forward and bumped into him, and, as he was withdrawing the knife, seized hold of the blade once again with both hands. At that stage a male member of the staff appeared and told the applicant to release Miss Tsui.

5. The applicant's explanation for holding the knife was that he wanted to commit suicide in front of her, and that he had grabbed hold of her neck because she was trying to escape when he wanted to talk to her. The applicant further testified that he had not intended to hurt Miss Tsui, but had simply brought the knife with him so that he could frighten her by committing suicide in her presence.

6. In his Reasons for Verdict the judge stated that he had no doubt on the evidence before him that the applicant had inflicted the wounds on Miss Tsui with intent to cause, her grevious bodily harm. He was satisfied that he was attempting to stab her in the abdomen and that she managed to avoid this only by seizing hold of the blade of the knife. He also found that even when Miss Tsui was holding the blade the applicant was still pushing the knife at her in an attempt to injure her. It is plain from an examination of the knife that it is a particularly vicious looking weapon with a long sharp and pointed blade and a specially adapted handle.

7. Mr. Michael Wong, who appeared for the applicant both at the trial in this court, advanced two grounds of appeal. He submitted, first, that in finding that there was no doubt that the applicant had attempted to injure Miss Tsui with a knife or to stab her in her abdomen, the judge erred in law and in fact by failing properly to consider the testimony of Miss Tsui, Miss Lee, Miss Kwok and Mr. Chu, and to take into account discrepancies in their evidence.

8. We accept that there were slight variations in the accounts given by the witnesses, but these were no more than can be expected in circumstances such as here. We do not accept the submission that the evidence given by Miss Tsui did not support the finding that the applicant was attempting to stab her. In our view the judge was right to conclude that the respective versions given by the witnesses were consistent in material respects.

9. The second ground was that the judge erred in law and in fact in finding the applicant had wounded Miss Tsui with intent to cause her grevious bodily harm in that he failed to consider or properly consider the possibility that the wounds sustained by Miss Tsui were not caused by the applicant but were caused by Miss Tsui herself when "she forced her hands onto the blade of the knife in self-defence". In seeking to support this ground Mr. Wong referred us two cases from the first half of the 19th century, R. v. Beckett (1836)l M & Rob 526 and R. v. Day (1845)l Cox 207,  both of which are cited in Archbold 34th edition at paragraph 20-140.

10. We should say once that we do not accept that the judge did not consider or properly consider whether the ingredients of the offence had been made out. Having recited the evidence he positively stated that he rejected the applicant's defence that he had no intention to injure miss Tsui, and that he had no doubt that the applicant had wounded her with an intent to cause her grevious bodily harm.

11. On a charge of wounding with intent to cause grevious bodily harm the prosecution, must prove, first, that the defendant wounded the person named in the charge and, second, that he aid so with the intent to cause him or her serious bodily injury. In the present case the judge found that both ingredients had been established. That in itself is sufficient to dispose of this ground.

12. We do not think that we should allow this opportunity to pass, however, without observing that we would not be disposed to accept, on the basis of a few lines attributed to Parke B. in the extremely brief report in Beckett, that where a defendant attacks a victim with a knife with the intent to cause him grevious bodily harm, there can be no conviction for the offence of wounding with intent if the evidence discloses that the wound or wounds were sustained by the victim in the course of reasonably defending himself from that attack. Such a proposition would have the absurd result that, where a victim who takes no action to prevent an attack is wounded by a defendant possessing the requisite intent, the defendant would be liable to conviction, but would not be so liable if the victim, acting in reasonable self-defence, sustains wounds to his hands in a successful attempt to deflect a knife thrust at some other part of his body.

13. If, however, that is the proposition that was enunciated by Parke B., we have no hesitation in saying that in our view it does not represent the present state of law, if indeed it ever was the law. We should observe in this regard that the reasoning of Parke B. 9 years later in Day is perfectly consistent with modern law. It seems clear to us from Day that in saying that the charge against the prisoner could not stand because the object of his attack was the dress and not the person of the prosecutor, and that "the cut received by the prosecutor not having been inflicted by the knife coming against his hand but his hand coming in contact with the knife at the moment when no intention existed in the mind of the prisoner to inflict any wound on his person," Parke B. was thereby indicating that the case would have been otherwise had the evidence shown that the prisoner had the intent to wound the victim at the relevant time notwithstanding that he had merely cut his clothing.

14. For the reasons we have given we are satisfied that is no substance in either ground of appeal. The application for leave to appeal against conviction is therefore refused.