THE QUEEN v. TIN CHI CHAK

CACC000446/1990

IN THE COURT OF APPEAL	1990, No. 446
	(Criminal)

                                                                                                                                                                                                                                                  

BETWEEN
	THE QUEEN
	AND
	TIN CHI CHAK	Applicant

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Coram: Hon. Sir Derek Cons, Ag. C.J., Clough & Macdougall, JJA,

Date of hearing: 25 July 1991

Date of delivery of judgment: 25 July 1991

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J U D G M E N T

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Sir Derek Cons, Ag. C.J. delivered the judgment of the court:

1. This is an application for leave to appeal by Tin Chi Chak ("the defendant") who was convicted by Mr. P.C. White, sitting as a deputy judge of the District Court, of wounding with intent to cause grievous bodily harm. He was sentenced to seven years' imprisonment and an order for $4,000 compensation was made. No point has been taken on the compensation order in this court.

2. Originally the application was in respect of conviction as well as sentence. Mr. Tse on his behalf abandoned the application as to conviction earlier and we accordingly dismissed it.

 

3. The evidence was that around midday on 5th June 1989 the defendant and two others attacked the victim as he was working on a car in a garage in Wing Ming Street. The defendant carried a Gurkha knife which he used repeatedly on the victim. One of the others carried a wooden pole, attached to which was a net, and which formed a very effective instrument for preventing the victim from immediately running away. At one stage of the attack the victim managed to pick up an old exhaust pipe to defend himself, and in so doing received wounds to his hands in addition to the wounds which he had already received to his throat and face. The wound to his throat, which severed his jugular vein, was six inches long. The wound on his face was four inches long.

4. When the victim tried subsequently to escape he was pursued by the defendant who continued to attack him with the kukri, inflicting further wounds on his back and his arm. Fortunately - one of the two pieces of good fortune in the case - the wounds apparently have well healed, leaving naturally scars, and although there is some residual disability to his hand this does not appear to be too serious.

5. Not surprisingly he lost a great deal of blood, and by the time he managed to crawl to a nearby Caritas medical centre, - the proximity of which was the other piece. of good fortune in the case, - he was in a state of shock. The doctor's evidence was that "if immediate treatment had not been given his life would have been very much in danger".

6. In passing sentence the judge observed that he accepted that this attack was "part revenge part preemptive strike". He was referring to a previous altercation that had occurred between the defendant and the victim, when the victim apparently attempted to intercede on behalf of a mother and child who were being attacked. The judge took into account too the fact that the defendant was 20 years of age and had a clear record; the probation reports said that he was generally a mild-mannered person and supported an invalid father. But the judge also noted that it was a well-organised and pre-meditated attack, accompanied by words to the effect "I will chop you to death".

7. Mr. Tse has drawn our attention to the sentences passed in many authorities relating to wounding with intent and similar offences. With every respect, none of them bear sufficient or useful similarity with the circumstances of the present.

8. The nature of the attack and its seriousness is only too apparent from the facts we have just outlined, and it was the fortunate proximity of the medical centre which meant that the victim survived at all. Technically speaking it would not be correct for that reason, but otherwise it could well be described as a "murderous attack".

9. By analogy to the principle that a sentence of seven years should not be imposed in the District Court where a defendant has pleaded guilty, - for to do otherwise would preclude any effect being given to that plea, - Mr. Tse suggests that the clear record and age of the defendant should likewise attract some discount. We cannot accept that suggestion.

10. Having regard to the nature of the attack it seems to us that seven years was an appropriate sentence and we accordingly dismiss the application.

(Sir Derek Cons)	P.G. Clough)	(N. Macdougall)
Acting Chief Justice	Justice of Appeal	Justice of Appeal

Representation:

John Reading, Crown Prosecutor for the respondent

Paul T.Y. Tse (D.L.A.) assigned for applicant