R. v. ZHAO WEI-SONG

IN THE COURT OF APPEAL

1992, No. 493
(Criminal)

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J U D G M E N T

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Litton, J.A. giving the judgment of the court:

1. The Applicant, Zhao Wei-song, was convicted in November 1992 on two charges: (1) wounding with intent, contrary to s. 17 of the Offences against the Person Ordinance, Cap. 212 and (2) obstructing a police officer in the execution of his duty, contrary to s. 36(b) of the same ordinance. In relation to the first charge, after conviction, he was sentenced to seven years' imprisonment. In relation to the second charge, upon his own guilty plea, he was sentenced to three months' imprisonment to be served concurrently with the sentence on the first charge. He now applies for leave to appeal against his conviction out of time and also applies for leave to appeal against the sentence on the first charge.

2. The incident occurred on 24th December 1990 at a majong school on the mezzanine floor of 185 Temple Street, Kowloon, in the course of which a female person Tsang Kam-har was seriously wounded .

3. There were two matters raised at trial: (1) identification of the victim and (2) the voluntariness of the applicant's confession to the police made on 20 February 1992. As regards identification the victim was known to the applicant and the victim identified the applicant as the assailant in court, although she had failed to identify him at an earlier identification parade. The judge considered this issue by reference to the testimony given by the victim who was plainly much traumatised by the event and suffered permanent disability as a result. The judge was satisfied on the evidence that the applicant was the assailant. As regards the statement made in the police station the applicant was recorded as having made a very detailed statement relating to what took place; he claimed that he had chopped the victim on the spur of the moment and that he was too impulsive at the time but plainly admitting that he was the assailant. The judge was satisfied that the confession was freely and voluntarily made. The facts of the case were quite overwhelming, indicating the applicant's guilt.

4. The victim had received very serious injuries from an attack by a chopper. She was hospitalised for eight months with multiple chop wounds to her skull, face, hands, wrist and forearms. The little finger on the left hand was completely chopped off and, as a result of the attack, she has suffered permanent loss of function of both hands. The judge said that the applicant was lucky not to have been charged with attempted murder. This remark is wholly justified. There are no grounds to impeach the conviction and the application for leave to appeal against conviction out of time must be refused.

5. As regards the application to appeal against the sentence, the judge imposed the maximum permitted by law which was seven years. Having regard to the circumstances of the case this was also wholly justified. The application for leave to appeal against sentence must also be dismissed.

6. The application to appeal against conviction in our judgment is wholly frivolous. Identification was never a live issue. Whether the attack was impulsive or not it was a very savage one which might well have caused the victim's death. There are no grounds for appeal. This is a proper case to exercise the Court's power under s. 83W of the Criminal Procedure Ordinance, ordering that part of the time during which the applicant is in custody should not be reckoned as part of the term of his sentence. In our judgment that period should be three months and we would therefore order under s. 83W of the Criminal Procedure Ordinance that the period of three months should not be reckoned as part of the term of sentence. The applications are dismissed.