CHAN NGAR v. THE QUEEN

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. This Appellant was charged in the District Court with wounding with intent and with assault occasioning actual bodily harm. He was convicted on both charges. Thereupon he was sentenced to three years' imprisonment on the first charge and one year's imprisonment on the second, concurrent.

2. The facts were that the Appellant and the victim met in a restaurant. Ostensibly the meeting was to discuss some business. According to the victim (and this evidence was accepted by the learned judge) the Appellant suddenly punched him in the eye. After that the victim was struck by somebody on the head. There appears to have been something of a melee: when the victim got up from the table at which he had been writing and tried to escape from the restaurant, he was chased by a number of persons from another table, and, when he failed to escape because a door was locked, he was beaten up. He did then sustain substantial injury.

3. In the light of the acceptance by the judge of the victim's own evidence that he was punched in the eye by the Appellant it is impossible in our view to interfere with the conviction on the second charge. However, counsel for the Crown feels unable to support the conviction on the first charge. However great the suspicion may be, there was no evidence whatever that the Appellant had conspired with the other persons who attacked the victim. Equally there is no evidence that the blow on the head which the victim sustained was caused by the Appellant.

4. It is not clear how the learned judge approached the matter. He did not fully evaluate the evidence and the case against the Appellant. It may be that he thought there was some evidence of common intent. He has not, as I say, evaluated the evidence and we see no such evidence. In those circumstances the conviction on the first charge cannot be upheld. We give leave to appeal against the conviction on the first charge, allow the appeal and set aside the conviction. The sentence on the first charge must, of course, be quashed.

5. There is then an appeal against the sentence on the second charge. In our view for a punch in the eye of the type which occurred here a sentence of one year's imprisonment on a person of previously good character is manifestly excessive. We set aside the sentence of one year's imprisonment and substitute such sentence of imprisonment as will lead to his release today. The application for leave to appeal against the conviction on Charge 2 is dismissed.

-5 MAY 1982