LI KWUN v. THE QUEEN

CACC000695/1974

 

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

 

CRIMINAL APPEAL NO. 695 OF 1974

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BETWEEN
	LI KWUN	Appellant
	and
	THE QUEEN	Respondent

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Coram: Huggins, McMullin & Pickering, JJ.

Date of Judgment: 4th October 1974.

 

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JUDGMENT

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Huggins, J.:

1. This is an application for leave to appeal against sentence. The Appellant was sentenced to three years' imprisonment for wounding with intent. However, as presented to us, the case is in effect an application for leave to appeal against conviction.

2. The Appellant contends, as he contended in the court below, that the victim hit him first and that he struck back in self-defence. When he said that in the court below, the learned judge said to the Appellant:

"You have agreed that you stabbed him with a pair of scissors, do you wish to retract that admission",

the Appellant replied:

"No, I did stab him with the scissors but they belonged to the restaurant, not to me. Nothing else".

Now with respect to the learned judge we do not think that that really closed the matter. Of course the Appellant agreed that he had stabbed with a pair of scissors, but the important point was that his contention was that he did that stabbing in self-defence and he was never asked whether he retracted that allegation. It is true that the Statement of Facts prepared by the police was read to the Appellant in the court below and, equally, there is no doubt that he admitted that those facts were correct, but from what he has said to us in this Court it is perhaps questionable whether he fully appreciated what he was saying when he agreed to that Statement of Facts. If he agreed to them clearly it was right for the learned judge to accept the plea of Guilty, but before us the Appellant has asserted that the whole basis of the case against him was not admitted. It was alleged in the Statement of Facts, among other things, that there had been a dispute between the Appellant and the victim in Macau 2 ½ years ago. The Appellant now insists that he has never been to Macau and that that can be proved by reference to the Immigration Department. It is not necessary to go through all the allegations in the Statement of Facts which he denies. It is sufficient to say that we are by no means satisfied that this Appellant intended to admit everything which was alleged against him. We are not satisfied that he intended to retract his case that his blow was struck in self-defence and we think it was unsafe for the learned judge to accept the plea of Guilty.

3. We think the proper course is to give leave to the Appellant to appeal against his conviction, to set aside the conviction and to order that the case be re-tried. Whether the Appellant pleads Guilty or Not guilty upon the new trial is a matter for him.

  

  

4th October 1974.

 

Representation: