HKSAR v. LING MAN FOON

CACC 222/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 222  OF 2004

(ON APPEAL FROM vdCc 250 of 1978)

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J U D G M E N T 

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Stuart-Moore, VP (giving the judgment of the Court):

1.  On 21 April 2004, the applicant was convicted in the District Court following a trial before Deputy Judge Dufton on a charge of wounding with intent, contrary to section 17 of the Offences Against the Person Ordinance, Cap. 212.

2.  The particulars of that offence alleged that on 9 October 1978, the applicant, together with a person named Lam Kwok-fai and Li Tak-chuen (also known as Chu Chai), unlawfully and maliciously wounded Fung Koon-wan (“the victim”) with intent to cause him grievous bodily harm.

3.  The applicant was arrested by police on 19 October 1978.  He failed to attend his trial on 19 February 1979 and a warrant of arrest was issued.  On 29 December 2003, the applicant surrendered himself to Wanchai Police Station in circumstances where apparently he had returned from the Mainland because of a serious medical condition from which he was suffering.

4.  The applicant was sentenced to five years’ imprisonment on 5 May 2004.  Originally, he sought leave to appeal against conviction and sentence.  Today, however, he has not proceeded with the former application.  This application is, therefore, dismissed. 

Background

5.  The background to the case is that the victim was wounded at about 1:20 a.m. on 9 October 1978 when he and his wife were waiting for a taxi.  The victim was chopped from behind and received wounds to his back.  He turned around and saw the applicant and Chu Chai.  He then ran away but was followed and chopped on the head and hands.

6.  Twelve days later, on 21 October 1978, the victim attended an identification parade where he identified the applicant as one of the persons who had attacked him with a knife. 

Sentence

7.  Turning to the sentence which was imposed by the judge just over twenty-five years after the event, it was submitted by Mr Suen Kam-hee, on behalf of the applicant, that a term of five years’ imprisonment was manifestly excessive particularly bearing in mind the general level of punishment for an offence such as this at the time when the offence was committed.

8.  At that time, the applicant was 22 years old and had a clear record.  The gravity of the allegation lay in the fact that the victim sustained two chop wounds over his scalp, multiple lacerations over the back and a seven-inch laceration over the right arm together with a deep laceration on the right hand which resulted in the fracture of a finger and a degree of permanent disability.

9.  It is apparent that in the background to this case, there had been some animosity between the victim and the applicant which concerned the applicant’s wife.  It seems that the applicant may have been provoked by jealousy when he had seen the victim having a meal with his (the applicant’s) wife after they had both finished work some two weeks before the attack.

10.  The main thrust of Mr Suen’s cogently presented submission was that whilst there are no guidelines for sentencing in cases of this kind, the judge should nevertheless have attempted to impose a sentence which reflected the level of sentence to be expected at the time when the offence was committed.  In his submission, similar cases of this kind were generally dealt with more lightly in the late 70’s than now.

11.  In support of his argument, Mr Suen provided the court with about ten cases which were decided nearer to the time of this offence in order to demonstrate his point.  A similar submission was made in the court below by counsel then appearing for the applicant, where the judge remarked:

“7. Whether or not lesser sentences were imposed in the past little guidance can be derived from previously decided cases.  There is and has never been any guidelines for offences of wounding with intent.  Each case is to be decided on its particular facts.”  (Appeal bundle p.18)

12.  Whilst, normally, only limited assistance can be obtained from other decisions in non-guideline cases, we are mindful of the fact that sentences for violence of the kind disclosed in this case have generally increased significantly over the course of the past ten years. 

13.  Mr Leung, counsel for the respondent, very responsibly conceded that the judge should have taken into account sentencing practice for similar cases at the time when the offence was committed.  At the same time he pointed out that not only was this a premeditated attack involving more than one attacker but that all of those in the applicant’s group were armed with beef knives.  As he said, this was a cowardly attack which fell into two parts, with the second and more serious part being an attack on the victim as he ran away.  He adopted the judge’s observation that anyone who intentionally aims a blow with a beef knife towards the head of another person is risking the life of that person. 

14.  Having regard to our earlier observation that sentences, at the present time, are generally heavier than they were at the time when this offence was committed, and bearing in mind that the sentence imposed should have reflected sentencing policy at that time, we consider that a reduction in sentence of one year should be given.  This is not, it follows from what we have already said, to be regarded as any indication of the tariff to be imposed in contemporary cases of this sort.  Its sole relevance is in regard to the present case where the most unusual circumstances have arisen.  Had it not been for these circumstances, we would not have interfered with the judge’s process of reasoning.

Conclusion

15.  Accordingly, we shall grant leave and, treating the hearing as the appeal, we allow the appeal to the extent that the sentence of five years is reduced to four years’ imprisonment.