ATTORNEY GENERAL v. LOW WING-WAH

IN THE COURT OF APPEAL

1995, No. 8

(Application for Review)

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J U D G M E N T

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Mortimer JA (giving the judgment of the Court): This is an Attorney General's application for review of a sentence under s.81A of the Criminal Procedure Ordinance, Cap.221.

The sentence

2. The sentence was passed by His Honour Judge Whaley in the District Court on 8 May 1995. It followed a conviction of the respondent, after trial, for wounding with intent, contrary to s.17 of the Offences Against the Person Ordinance, Cap.212.

The facts

3. The facts as found by the judge were that a trivial dispute had arisen between the respondent and the victim about the availability of chairs in a restaurant. The victim was there with his family and his mother celebrating his mother's birthday. There were chairs free at the victim's table, awaiting other members of the family. The respondent asked for these chairs and after the third request, a quarrel arose between the respondent and the victim, which resulted in foul and abusive language. There was a suggestion that the respondent threatened the victim with an umbrella. The victim certainly threatened the respondent with a full teapot. After that, the respondent left, saying 'You had better watch out. If you have guts don't leave - I will go to get assistance.'

4. The respondent did indeed leave only to return a few minutes later with another man. He went up to the victim and said 'I brought my brother, come out and have a talk'. When the victim refused, the respondent tried to pull him out and the victim brushed him off. Thereupon the respondent lifted the Hawaiian shirt he was wearing to reveal a chopper in his waistband which he drew out. The victim tried to get away but as he fell over a chair the respondent struck a blow which caught him on his eyebrow and eye, causing a deep lacerated wound to the eyebrow and the eye itself, with the result that the victim lost his eye. He now has a glass eye. There was no medical report produced to the court below - surprisingly - but it is clear that there was no bony injury and that the blow just slashed the eyebrow and the eye.

The trial and reasons for sentence

5. The respondent gave a number of somewhat different accounts of the event which the judge rejected without hesitation. Consequently he passed a sentence of 2 years and 9 months. In passing sentence he took into account a number of matters. He took into account the offence which was wounding with intent, the very serious nature of the wound and its result, also the fact that the attack was not completely in cold blood. There had been some provocation in the earlier quarrel with the consequence that the respondent had completely lost his temper, failed to control it, returned with the weapon and struck a blow which was completely out of proportion to what had happened earlier.

6. The judge also said:

"There is a disturbing readiness in Hong Kong to resort to lethal weapons like choppers and knives to settle apparently ordinary and sometimes even trivial disputes such as the one that is the subject of this case. The public must be protected against this tendency to use these lethal weapons such little provocation and the sentence must, in my view, reflect the abhorrence of the community against resorting to a chopper in these sort of circumstances."

Later he added,

"The sentence must also make it clear to people that they will be severely punished if they resort to these sort of weapons on such little justification."

Those are sentiments which we would also reflect.

7. Finally, the judge took into account a number of matters in the respondent's favour. The respondent was 59 years of age and he was treated as a man of perfectly good character with no predisposition to violence. He never denied that he was responsible for the attack and the injury. His counsel told the judge that the respondent had been prepared to plead guilty to a s.19 offence of unlawful wounding before the trial. The trial was really fought on the issue of intent. The attack was not sustained and not in the same category of offence such as a triad attack or anything like that.

The Attorney General's case

8. The Attorney General seeks to review the sentence on the basis that it is manifestly inadequate in all the circumstances. Mr Saw rightly submits that little guidance can be obtained from other cases - all of which depend upon their specific facts. But he submits that on the facts of the case the sentence passed by the judge was manifestly inadequate.

Conclusion

9. It is to be noted that this case is very different from that of R v Nguyen Thang LoiCriApp No. 335 of 1991 where a 7 years imprisonment was imposed. In that case there was a specific intent on the part of the accused to blind the victim with scissors. On the other hand this case is also to be distinguished from R v Cheng Siu Lung CriApp 494 of 1985 where a sentence of 2 years for an attack with a knife which resulted in a relatively minor injury was upheld by this Court.

10. Those decisions indicate that every case must depend upon its own facts. Further, the trial judge has a very wide discretion in the sentence which he imposes. He is in most circumstances the best person to judge the facts and to assess the proper sentence.

11. We accept that the judge rightly took into account the matters advanced in mitigation below. Mr Iu, who has pressed everything on the respondent's behalf that could be put forward, also points out that the consequences to this applicant of the conviction was that he lost good employment which provided him with a pension. He lost his pension and all prospects. This Court does not need persuading that for a man of his age to go to the prison for the first time is very serious punishment in itself.

12. However, having said that the judge, in passing a sentence of 2 years and 9 months, failed to properly to take into account the full severity and seriousness of what this applicant did - even taking into account the substantial mitigation. We consider that the judge ought to have been thinking initially of a sentence in the region of 5 years. But taking into account the substantial mitigating matters which we have mentioned, we think the proper sentence - which we now substitute - is one of 4 years imprisonment. We allow the review and substitute that sentence for the sentence passed by the judge.