Lam Man Yung v The Queen

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 318 OF 1968

(South Kowloon Magistracy Case No.8227 of 1968)

-----------------

-----------------

-----------------

JUDGMENT

-----------------

1. The appellant pleaded guilty to the charge of wounding contrary to Section 19 of the Offences Against The Person Ordinance (Cap.212). The particulars of the charge alleged that on the 9th of May in Kowloon she unlawfully and maliciously wounded Lee Hoi Lun.

2. Both the appellant and her victim, Lee Hoi Lun, were bar girls working in different bars in the Tsimshatsui area. They had at one time worked in the same bar where bad feeling had developed between them resulting in an actual fight in which both were hurt. Shortly after that incident there was another physical conflict between them in which the appellant was injured although apparently not seriously.

3. At approximately twenty past four on the 9th of May of this year both girls were sitting in the waiting room of the Jockey Club Polyclinic in Reclamation Street awaiting routine medical checks when the appellant challenged Lee Hoi Lun to a fight. Upon the latter declining the challenge, the appellant left the waiting room and some five minutes later when Lee Hoi Lun was walking up the stairs in the clinic she was intercepted by the appellant who again challenged her to fight saying that she wanted revenge and wanted to slash Miss Lee's face. At this Miss Lee retreated one step downwards but in doing so had her face slashed by the appellant with an object which was later found to be a razor-blade. The appellant then ran up the staircase and escaped. Miss Lee was given first aid and medical care in the clinic and was subsequently sent to Queen Elizabeth Hospital where she was detained until the 12th of May. Her injuries consisted of a one inch long oblique cut in the medial end of the left eyebrow and upper eye lid which continued into a cut two and a half inches long extending from the medial angle of the left eye down to the cheek, the underlying muscles also being cut.

4. At ten minutes before midnight on the date of the attack the appellant reported to the C.I.D. at Yaumati Police Station telling the investigating officer that she had used a razor-blade to slash Lee Hoi Lun and had thrown the blade away afterwards. The appellant admitted that a blade subsequently recovered was the blade she had used.

5. In sentencing the appellant to two years' imprisonment the learned trial Magistrate said that he had considered all the matters before him and in particular the defendant's age, the unprovoked vicious attack and the waylaying of the victim, the dreadful injury the victim had suffered and the use of a razor-blade to attack a young girl's face. The learned Magistrate said that he bore in mind also the fact that the appellant had pleaded guilty but as to her giving herself up to the police, he expressed the view that she may well have felt that in doing so she was only anticipating her apprehension. He described her as mature in experience and the ways of the world and as old in everything except years. The trial Magistrate considered that what was required was punishment and not reformatory treatment and that prison was the proper and the only proper course. He examined the wound on the face of the victim and obtained a probation report on the appellant.

6. There was some conflict as to the appellant's age and the facts as to her age contained in the probation report were contradictory in themselves. The appellant has no papers to prove her age and the assertion in the probation report that her date of birth was the 28th of March 1953 does not reveal its source and is contradicted by the further assertion in the same report that she was nine years old when she first came to Hong Kong in 1961. This latter suggestion conflicts with information contained in an exit permit from China dated the 9th of November 1961 showing the appellant's age at that time as seven, a statement which, if correct, would mean that she is now fourteen years old. The learned Magistrate, relying on the case of Wallwork v. Balmar referred to in the 1966 Criminal Law Review at page 42, where it was held that evidence of age could be provided by the magistrate seeing certain youths for himself and reaching a conclusion on their apparent age, found the age of the appellant to be not less than 16 years. My own close view of the appellant in court and outside the dock in no way leads me to question that opinion. Accepting, in accordance with the principle of Benmax v. Austin Motor Co. Ltd.⁽¹⁾ that an appellate court, in circumstances in which there is no question of the credibility of a witness but the sole question is the proper inference to be drawn from specific facts, is in as good a position to evaluate the evidence as the trial judge and should form its own independent opinion whilst giving weight to that of the trial judge, such independent evaluation does not lead me to differ from the conclusion of the trial Magistrate.

7. Leading counsel for the appellant based his argument first upon the suggestion that she is in fact under sixteen and should have been treated as a juvenile and in the alternative that even if the appellant is sixteen or more any sentence of imprisonment was in the circumstances unreasonable.

8. I have sufficiently indicated my view of the suggestion that the Magistrate was wrong in finding the appellant to be not younger than sixteen for it to be apparent that nothing in this appeal can turn on that question. It is...