LAM KWEI HOI ALIAS LAM SHUN v. THE QUEEN
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CACC000567/1969
IN THE SUPREME COURT OF HONG KONG
APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 567 OF 1969
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| BETWEEN | ||
| LAM KWEI HOI alias LAM SHUN | Appellant | |
AND | ||
| THE QUEEN | Respondent |
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Coram: Briggs & Morley-John JJ.
Date of Judgment: 25 OCT 1969
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JUDGMENT
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1. In this case the appellant was found guilty of malicious damage to property contrary to section 37 of the Malicious Damage Ordinance and sentenced to 2 1/2 years' imprisonment.
2. The appellant together with a number of other persons was involved in a fight with two police constables who were in plain clothes. The two constables took refuge in a taxi. They were attacked while they were in the taxi by persons who were armed with various weapons. During the course of the incident a window of the taxi was broken. Damage to the amount of $30 was done.
3. The evidence showed that the appellant was the driver of a van which brought the other persons to the place where the fight occurred, and the District Judge accepted as a fact that he took part in the fight. It was not however suggested that the appellant personally broke the window of the taxi.
4. At the trial the appellant and three other persons were acquitted of two charges of wounding with intent. And the other three persons were also acquitted of the offence of malicious damage.
5. Leave to appeal against conviction was refused but we granted leave to appeal against the sentence out of time.
6. The appellant was sentenced to a term of 2 1/2 years' imprisonment. This was admitted in court by the Crown to be a most severe sentence. And we agree. Further, we think that the District Judge must have been influenced by the fact that the two police constables were wounded in the fight. The learned judge also appears to have considered the record of the appellant when determining the length of the sentence. His record discloses a number of offences but no offence involving violence. While we think that it was open to the court to consider the circumstances in which the offence was committed we are of the view that the offence of malicious damage was only one incident in the street fight and should have been dealt with as an isolated offence.
7. The appellant has been in custody since about June 5. His conviction is dated July 18. We think that in these circumstances the correct course to take is to vary the sentence passed by the court below so as to allow the appellant to be released to day at the rising of the court. We so order accordingly.
| (G.G. Briggs) | (Morley-John) |
| President | Appeal Judge |
25 OCT 1969
Representation:
Ming Huang (Remedios & Yanne) assigned for Appellant.
B. A. Sceats C. C. for Crown.