THE QUEEN v. YAU HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 830 OF 1985

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JUDGMENT

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1. The Appellant was charged with the offence of wounding contrary to section 19 of the Offences Against the Persons Ordinance. He appeared in the Magistrates' Court on the 27th August, 1985 and pleaded guilty to the charge. The facts which were read to the court on that occasion indicated that the victim of the wounding was the Appellant's wife, and that the incident occurred during the course of a domestic dispute arising from the victim's failure to return to the matrimonial home on the previous night.

2. During the course of the struggle, the Appellant picked up a pair of scissors from which the victim received a laceration to her left fore arm during the continuation of the struggle. The learned magistrate was quite concerned at "the reference to struggle in the facts and the charge of wounding in the circumstances". He therefore adjourned the case to the 10th September, 1985 "for clarification of the facts and the appropriateness of the charge".

3. On the 10th September, 1985, the Appellant appeared before a different magistrate. The charge in its original form was read to him again and he pleaded guilty. However, a new statement of facts was presented. In this statement it was alleged that during the course of the argument between the Appellant and the victim, the Appellant punched the victim on her chest four times and picked up the scissors and struck her on the left fore-arm with them when she said that she was going to telephone the police. The facts further alleged that when she was medically examined she was found to have "laceration over left fore-arm".

4. The Appellant was unrepresented. In mitigation he merely said that he was a married man with four children and that his occupation was a driver earning $2,000 - $3,000 a month.

5. The learned magistrate convicted him and sentenced him to imprisonment for 3 months. The Appellant at the time was a man with a previously clear record.

6. Mr. Nguyen, on behalf of the Appellant today, seeks to have the sentence reduced on the basis of factors which were not put before the learned magistrate but which if they had been put would have led to a penalty less severe than the one he imposed. The victim has now left the matrimonial home and there is no likelihood of any further altercation between the Appellant and the victim in the matrimonial home where the four children mentioned by the Appellant in his mitigation before the learned magistrate are still living.

7. It seems to me since the Appellant has been imprisoned since the 10th September that he has received more than sufficient punishment for the commission of this offence. I, therefore, allow the appeal to the extent that the Appellant be imprisoned for such period as will allow his immediate release and I so order.