Lam Shui Kam v The Queen

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 621 OF 1967

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

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

JUDGMENT

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

1. The appellant seeks leave to appeal against sentences of 5 years and 3 years imprisonment, to run concurrently, imposed upon him by a Supreme Court judge for the offences of wounding with intent and throwing corrosive liquid with intent to do grievous bodily harm. At the outset of committal proceedings taken against him in respect of these two indictable offences the appellant pleaded guilty to both charges before the magistrate and the magistrate, in accordance with the recently enacted provisions of section 81B of the Magistrates Ordinance, committed him to the Supreme Court for purposes of conviction and sentence. Before the Supreme Court the appellant maintained his plea of guilty to both charges; the learned judge accepted those pleas and, having recorded convictions thereon, imposed the sentences from which the appellant now seeks leave to appeal.

2. A point has been raised by Mr. Boy, Crown Counsel, as to whether there is not some lacuna in the procedural sections enacted and as to whether any right of appeal actually exists. Section 81 of the Criminal Procedure Ordinance only provides for appeals in respect of persons "convicted on indictment". The proposition advanced is that since no indictment has been filed - the accused having only been committed for sentence on the original charge sheet filed in the Magistrate's Court - no right of appeal can lie under section 81 of the Criminal Procedure Ordinance. Similarly, since no conviction or sentence was ever recorded or imposed by the magistrate no appeal can lie from his court. Thus, it is said that there is a lacuna in the law as it now stands and that no appeal lies.

Section 81B(4) provides that

"The judge before whom the accused is brought -

The point raised is by no means free from difficulty and it would undoubtedly have been far more satisfactory if the draftsman had followed the normal practice of using the expression that the accused, upon a plea of guilty, 'shall be deemed to have pleaded guilty to the offence charged as if he had pleaded guilty on arraignment upon an indictment filed by the Attorney General'. Nevertheless, albeit with some doubt, the majority of the members of this court have come to the conclusion that the only reasonable and logical interpretation to be placed upon the words contained in the Section is that the accused person is to be treated in exactly the same way as if he had pleaded guilty to the offence charged on an indictment filed by the Attorney General. If he is to be treated for purposes of conviction and sentence, as if he had pleaded guilty upon indictment, then it seems to us to follow as a necessary implication that he is to be regarded as "A person convicted on indictment" within the meaning of section 81 of the Criminal Procedure Ordinance and that he has such rights of appeal as are provided by that section. The Court is therefore of the opinion that the appeal is validly instituted.

3. Turning now to the matter of sentence. The appellant, aged 29 and a man of hitherto good character, had been living for some time past with the female complainant, a woman who was not his wife. She had in fact previously been a prostitute. Living on the same premises was the male complainant, a very good friend of the appellant. One evening whilst the appellant was out of the house the male and female complainants decamped together and, in fact, stayed away for two nights. The appellant traced them, found them and persuaded the woman to return to live with him. The male complainant, the erstwhile friend of the appellant, also returned to their common habitation and to the cubicle which he occupied next to that of the appellant and the female complainant. In the early hours of the following morning the female complainant was awakened by cries coming from the adjoining cubicle. The next she knew was a sensation of pain on both sides of her face. It was apparent that the appellant, presumably brooding in the night over the wrong done to him by his former friend, had got out of bed, taken a bottle of corrosive liquid and poured it on the male complainant's face as he lay in bed. He had then returned to his own cubicle, taken a razor blade and slashed the female complainant on both sides of her face. The incident occurred on the 30th August. Both complainants, at the request of the Court, were present in Court so that we were able to see the injuries they had sustained. Fortunately, the eyes of the male complainant were not injured and apart from a slight sloughing of the skin on the right side of his face he had sustained no permanent injury. The injury done to the female complainant was, unhappily, a good...