WAT YAU MAN v. THE QUEEN

Coram: Li, J. in Court

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JUDGMENT

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1. This is an appeal from a case which may be described as a storm in a tea cup. The facts leading to this appeal may be described briefly as follows.

2. The appellant was feeding his child with some fruit. The appellant saw fit to chastise the child because of bad behaviour. The appellant's wife saw it and immediately intervened. There was a quarrel and a struggle between the appellant and his wife. The wife threatened to leave the appellant and take the child with her. The appellant punched his wife causing bruises and swelling on her arm. Not to be outdone by her husband the wife immediately seized a kitchen knife and threw it at the appellant causing a cut wound on the appellant's thigh. The wife called her own mother who was unimaginative enough to insist that the police must be called. As a result both the appellant and his wife were separately charged with the offence of assault occasioning actual bodily harm. When the appellant was before the learned magistrate things appeared to move quickly and too quickly. The facts and the charge were read to the appellant who stated that

"I admit I punched her, I beat my daughter for another reason."

However no medical certificate about the wife's injury was produced. The case was adjourned for a social welfare report. Immediately the appellant's wife was put before the same magistrate on a similar charge. As soon as the learned magistrate saw the bruises and swelling on the wife's arm he at once rescinded his decision to call for the social welfare report and sentenced the appellant to 14 days' imprisonment. The appellant was not legally represented then. By the time his application for a review was heard he had served his sentence. In any event the application was refused and no reason has been recorded for the refusal. Hence this appeal. I understand the appellant's object is to have the record of conviction removed. I am informed by learned counsel for the Crown that for a similar conviction the appellant's wife was bound over in a sum of money without her conviction being recorded. This is a small matter, a fight between husband and wife, albeit in a severe form. In this fight the wife's behaviour was no better than that of the appellant. I would have thought some fatherly advice and warning will be sufficient to dispose of the matter. If punishment is called for I can only say "what is sauce for the goose is sauce for the gander". As it happened the appellant was punished peremptorily without being given a chance to say anything further in mitigation. The application was turned down without a recorded reason. The wife apparently in the course of this fight had the better of the appellant. I understand that the appellant received eight stitches on the thigh. That should be a good lesson for him not to further bully his wife any more.

3. I do not think that I need to refer in detail the cases of Cheng Kam Man v The Queen in Criminal Appeal No. 426 of 1969 and of Ghafoor's case in Criminal Appeal No. 38 of 1978. Having regard to the principle laid down therein and considering that the appellant had a clear record, I am of the opinion that he might well be treated in the same way as his wife. The appellant has already served his sentence of imprisonment. There is no point in binding him over. The only wish he has is to have the conviction removed from record. In all the circumstances I would allow the appeal and grant the appellant an absolute discharge with no conviction recorded.