R. v. LUNG HUNG KEE

No. 30 of 1996
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Sears, J. (giving the judgment of the Court)

1. The applicant was convicted before H.H. Judge Davies of wounding with intent and sentenced to 2½ years imprisonment. He seeks leave to appeal against both conviction and sentence.

2. He had been working for Mr Wong Pui Chau as plumber and was owed money. He had asked Mr Wong on several occasions for the money and there was clearly some bad blood between them. He phoned up one day and demanded his money and Mr Wong said that he did not have it and if he wanted to do something about it, he could come over and chop him, which is precisely what he did. The applicant went over with a chopper, which was later discarded by him, and attacked Mr Wong.

3. The judge listened to the evidence of both the victim and the applicant and came to the conclusion that that is indeed what happened. The injuries suffered fortunately were of a minor nature insofar as there were abrasions on the chin, the shoulder and superficial lacerated wounds on the left loin. However, there was a 3 cm long muscle deep lacerated would which cut the tendon on the right thumb. This was treated in hospital by an operation when it was sewn together. It subsequently ruptured and another operation had to be performed. What the degree of permanent disability is, we know not, but it was clearly a serious wound.

4. The applicant unfortunately did not plead guilty. Had he done so, the Court would have been entitled to have given great sympathetic consideration to his position.

5. Insofar as the application for leave to appeal against conviction is concerned, we have examined all the evidence in this case. We cannot find anything wrong with the verdict. It is neither unsafe nor unsatisfactory. The application for leave to appeal against conviction is dismissed.

6. As far as the sentence is concerned, as I said earlier, it is a great pity this applicant did not plead guilty. He is aged 43, a man of virtual good character, albeit a conviction some years ago for common assault. He appears to be a hard working person and there was some provocation in that he was clearly owed money by the victim and no doubt was in an aggravated state of mind.

7. Sentences for wounding with intent vary. However, a chopper was used on this occasion and the starting point of 3½ years taken by the trial judge, in our judgment, cannot be faulted. The judge then gave one year discount for the good character of the applicant and the unusual circumstances which were that he was owed money and had, to some extent, been provoked by the conduct of the victim. In our judgment, that was an adequate discount to give. The application for leave to appeal against sentence is dismissed.