Hon Barnes J (giving the reasons for judgment of the Court):
原訟法庭法官張慧玲頒發上訴法庭判案理由書 ：

The applicant was charged with one count of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212 Laws of Hong Kong.  The applicant pleaded not guilty.  He was convicted after trial before Deputy District Judge Sham and was sentenced to 3 years’ imprisonment.  He initially applied for leave to appeal both conviction and sentence.  Subsequently he abandoned the appeal against conviction and sought leave to appeal the sentence only.
申請人被控一項「有意圖而傷人」罪，違反香港法例第212 章《侵害人身罪條例》第17(a) 條。申請人否認控罪，經審訊後被區域法院暫委法官沈‍小‍民裁定罪名成立，被判監禁3 年。申請人本就定罪及刑期申請上訴許可，其後申請人放棄針對定罪的上訴，祇就判刑提出申請。

After the hearing, we granted the applicant leave to appeal and, treating the application as the appeal proper, we allowed the appeal, set aside the 3 years’ imprisonment, and substituted therefor a term of 2 years and 3 months.  Our reasons are set out below.
本庭在聆訊後批准上訴申請許可，並視之為正式上訴。本庭裁定上訴得直，3 年監禁刑期撤銷，改判監禁2 年3 個月。以下是本庭的理由。

Facts
案情事實

The facts as found by the Deputy Judge were as follows (page 19 of the appeal bundle):
沈‍法官裁定的案情事實如下 (上訴文件第19 頁)：

“2.The facts show that both the defendant and the victim Cheung Kwun-wo (78 years old) were residents of Chung On Estate and they knew each other.  Prior to the wounding incident, they had had a quarrel over a chess game.  On the day of the offence, i.e. 23 June 2011, Mr. Cheung was in the park, where the offence was committed, watching people playing chess.  The defendant went up to Mr. Cheung and asked him to pay compensation for what happened the day before yesterday.  Because of that, an altercation broke out between them again.  The defendant took out a knife.  When the chess players saw that, they told Mr. Cheung to run away.  Mr. Cheung did run, but after he ran for 60 to 70 metres, he was caught up by the defendant. The defendant stabbed him, injuring the area under the left armpit.  The defendant continued to attack him with the knife.  As he tried to fend off the attack with his left hand, his left thumb and left index finger were injured. Then the defendant ran away and the police were called.
「2.案情透露，被告人與傷者張均和 (78歲)，都是頌安邨的街坊，彼此互相認識。在傷人事件之前，雙方曾經為下棋問題有所爭執，直至2011年6月23日案發當日，張伯在肇事現場的公園觀看他人下棋，被告人走到他身旁，為著前日所發生的事情，要求張伯賠償，雙方因此而又口角起來。被告人拿出一把刀，當時下棋的街坊看見這情況，著張伯走離開，張伯逃走，不過走了六七十米之後，給被告人追到，被告人用刀刺傷張伯左腋下位置，另外繼續用刀襲擊他，張伯以左手擋格的時候，左手拇指和食指受了傷，之後被告人走離開現場，其後事件報了警。

Mr. Cheung was sent to hospital.  The medical report said that there was a stab wound, 1.5 cm long, under his left armpit near the chest, and that there were also injuries on his left upper limb.”  (explanation given by the court)
3.張伯被送往醫院醫治，醫生報告指他左腋下胸口位置被刺傷，傷口1.5公分，而左上肢亦有受傷。」(本庭加以注釋)

Applicant’s background and mitigation submissions
申請人背景及求情陳詞

The Deputy Judge set out the applicant’s background and mitigation submissions as follows (page 20 of the appeal bundle):
沈‍法官列出申請人背景及求情陳詞如下 (上訴文件第20 頁)：

“4.The defendant is 72 years old.  He has one conviction record (1988, one conviction for gambling).  As that conviction was quite some time ago, I will treat him as a person of clear record when I consider the sentence.  The defendant is a retiree.  Before his retirement, he worked as a mini-bus driver.  He is married.  He has two sons and one daughter.  As far as his health is concerned, he received a coronary bypass operation in 2009.  In addition, he is suffering from a variety of ailments and illnesses, such as shortness of breath.
「4.被告人現年72歲，過往有一項刑事紀錄 (1988年一項賭博案底)，由於案底距今已有一段時間，本席在量刑時，會視被告人為無案底的人。被告人已退休，退休前曾當小巴司機，已婚，育有兩名兒子、一名女兒。身體健康方面，在09年曾做過心臟搭橋手術，另外還有多種身體毛病，例如氣促等。

5.By way of mitigation, the defence has submitted a number of letters for the court’s consideration, including letters from Legislative Councillor Mr. Chan Hak-keung [sic]; Madam Wong, Chairwoman of the Mutual Aid Committee of Chung On Estate; and the defendant’s children.  In sum, they have made very positive comments on  the defendant, describing him as easy-going, always ready to help others and eager to do voluntary social work, and stating their belief that the defendant’s commission of the present offence was out of his character.”
5.求情方面，辯方呈上多封求情信給法庭考慮，包括立法會議員陳克強先生，頌安邨互助委員會主席黃女士，被告人的子女。總括而言，各人對被告人的觀感非常之好，指被告人一向性格隨和、樂於助人，又熱心社會義務的工作，對於今次被告人犯下這罪行，各人都相信是與他一貫性格不符。」

Reasons for sentence
判刑理由

The Deputy Judge cited the authorities Hau Ping Chuen2 and Tse Hok Lam3[transliteration of 謝學林] and pointed out that this kind of offence called for severe punishment, with the usual sentence being imprisonment for 3 to 12 years.  The Deputy Judge went on to say (page 21 of the appeal bundle):
沈‍法官在引述案例 (侯炳全 及謝學林 ) 時指出，此類罪行要嚴懲及一般判刑範圍應是3 年至12 年後，說 (上訴文件第21 頁)：

“8.I consider that there are aggravating features in the present case.  Before the wounding incident occurred, the defendant had a quarrel with Mr. Cheung over a chess game, following which he nursed a grievance against Mr. Cheung.  It is obvious that the attack was premeditated, because on the day of the offence the defendant brought along knives for the purpose of attacking another person.
「8.本席認為本案有其嚴重的地方。被告人因為在傷人事件之前，與張伯就下棋一事有所爭執，而他深深不忿，案發當日很明顯他是有計劃地進行是次襲擊，帶備刀子襲擊他人。

9.On the basis of the admitted evidence, I believe that the defendant carried two knives with him at the material time, and that the knife produced at trial was not the one used in the wounding.  However, taking into account the overall circumstances of the defendant’s attack on the victim, that knife would, I believe, at least have been as sharp as the one produced in court.  In other words, I believe it was a sharp and lethal weapon.
9.從法庭接納的證供來看，本席相信被告人當時帶備兩把刀，而呈堂的那一把刀並非兇刀。不過，從被告人以刀襲擊的整體情況來考慮，本席相信該把刀鋒利程度是不下於本案所呈上的刀子，換句話說，本席相信它是一把鋒利、可致命的武器。

10.I also consider there were serious features in the circumstances of the offence.  The defendant is an elderly person but so is the victim, who is 78 years old.  The facts as found by the court were that when the defendant took out the knife, the victim actually chose to flee, but the defendant refused to let it go at that.  He chased the victim with the knife in his hand.  When he caught up with the victim, he attacked him at once and inflicted on him the injuries he suffered.
10.在情節方面而言，本席認為也有嚴重之處，雖然被告人本身都是一位長者，但傷者同樣都是一位長者，年屆78歲。以法庭接納的案情來看，被告人拿刀子出來時，其實傷者已經選擇逃離現場，但被告人並沒有罷休，拿著刀子追著他，追到的時候就隨即向他作出襲擊，導致他受了本案的傷勢。

11.An elderly person who is being chased after for 60 to 70 metres may fall or tumble at any moment during the chase.  For an elderly person, a fall or tumble can entail serious consequences.  Worse still, when the defendant caught up with the victim, he attacked him with a knife, pulling no punches.  That the victim neither suffered very serious injuries nor was troubled by any sequelae is a matter of sheer luck, not because the defendant exercised any restraint on his attack.
11.追一名老人家六七十米，他隨時會蟀倒，對於一名長者而言，蟀倒可導致很嚴重的後果。不單止這樣，被告人追到傷者的時候，他還持刀襲擊對方。被告人出手絕對不輕，傷者沒有受到很嚴重傷勢或後遺症，純粹他的運氣而已，並非被告人手輕。

14.On the day in question the defendant attacked an elderly person with a lethal weapon he brought along.  What he did was deliberate and premeditated.  Such violent conduct may lead to serious consequences and is never tolerated by the courts.
14.被告人當日是有意圖、有計劃地拿著可致命的武器，向一名上了年紀的人作出襲擊，這種暴力行為，法庭絕對不能夠容忍，因為其後果可以很嚴重。

15.After consideration, I adopt 3½ years’ imprisonment as the starting point.  In light of the fact that the defendant is in his 70s, that he has only one previous conviction for a relatively minor gambling offence, and taking into account everything said in his favour by those who wrote the letters of mitigation for him, I reduce the term by 6 months.  To conclude, the defendant is sentenced to imprisonment for 3 years.”
15.考慮過後，本席以三年半作為量刑起點，考慮到被告人七十多歲，過往只犯下一項較輕微的賭錢罪行，加上求情時替他寫求情信的人所講及關於對他有利方面的說話，減刑半年。最終的判刑是3年監禁。」

Ground of appeal
上訴理據

The ground of appeal put forward by Mr. Hu, Counsel for the applicant, was essentially that the Deputy Judge had not adequately considered the victim’s injuries and the mitigating circumstances in favour of the applicant, as a result of which he imposed the sentence of 3 years’ imprisonment which was (the applicant submitted) manifestly excessive.
申請人代表胡‍德‍理大律師提出的上訴理由，基本上是指沈‍法官無充分考慮傷者的受傷情況及申請人的求情理由，因此3 年監禁是明顯過重。

(I)The injuries
(一)受傷情況

Mr. Hu cited the English case of R v Nottingham Crown Court, ex parte DPP4 and submitted that, in considering the gravity of the case in question and the appropriate sentence, the court could take into account the injuries suffered by the victim.
胡‍大律師引用英國案例R v Nottingham Crown Court, ex parte DPP ，指法庭可因應受害人的受傷情況去考慮案件的嚴重性及作出恰當的判刑。

Mr. Hu referred to a number of decided cases involving the offence of wounding with intent5 to support his contention that, in the circumstances of the present case, 3 years’ imprisonment was manifestly excessive.
胡‍大律師引用多宗有關「有意圖而傷人」的案件 ，指以本案案情而言，3 年監禁刑期是明顯過重。

Mr. Hu placed particular reliance on the case of Yeung Kam Kwai6, because the appellant and the victim in that case were aged 69 and 76 respectively at the time of the offence, and their ages were close to those of the applicant and the victim in the present case.  Mr. Hu submitted that the injuries suffered by the victim in that case were more serious than those suffered by the victim in the present case.  In the end, the Court of Appeal imposed a sentence which enabled the appellant, who had served 9½ months of the original sentence, to be immediately released.  Mr. Hu submitted therefore that the Deputy Judge erred in adopting 3½ years as the starting point.
胡‍大律師特別依賴楊金葵 一案，因該名上訴人在案發時年69 歲，而傷者則是76 歲，與本案的申請人及傷者有相似之處。胡‍大律師指在該案的受害人傷勢較本案的傷者為重，最終上訴庭在楊服刑9½ 個月後判其即時獲釋，因此，沈‍法官在本案採納3½ 年為量刑起點是錯誤的。

(II)Mitigating factors
(二)求情因素

Mr. Hu stressed that at the time of the offence the applicant was an elderly person aged 72 and had no criminal record except one conviction for illegal gambling, and that the victim had done something which provoked the applicant.  For these reasons, Mr. Hu submitted that although the Deputy Judge correctly reduced the term of imprisonment by 6 months, the starting point of 3½ years was still too high.
胡‍大律師強調申請人案發時已是72 歲高齡，除了一次非法賭博外，並無其他刑事紀錄。傷者曾對申請人作出激怒行為，因此，雖然沈‍法官適當地扣除6 個月刑期，但3½ 年量刑起點仍是過高。

Mr. Hu complained that the Deputy Judge failed to have sufficient regard to the applicant’s age and to the fact that he had no record of violent behaviour, that the victim had acted in a way which provoked him, and that the attack was an isolated incident and the result of a momentary impulse.  For these reasons, Mr. Hu submitted that the sentence of 3 years’ imprisonment was manifestly excessive.
胡‍大律師指沈‍法官並無充分考慮申請人的年紀及在以往並無暴力紀錄，傷者亦曾對申請人作出激怒行為，襲擊屬個別事件及一時衝動的行徑，沈‍法官判以3 年監禁是明顯過重。

Respondent’s reply
答辯人回應

The respondent’s position, as explained by Mr. Kuan, Senior Public Prosecutor for the respondent, is that the applicant wounded the victim with a knife at the slightest provocation, and that such conduct warranted a deterrent sentence: see Hung Kar Chun7.
答辯人代表高級檢控官關‍百‍安的基本立場是申請人受到輕微挑釁便使用刀刃傷及傷者，法院必須判以阻嚇式的刑罰：案例熊家駿 。

Mr. Kuan conceded that all the following were mitigating factors: at the time of the offence the applicant was 72 years old; he had undergone a heart operation; the attack did not result in serious injuries to the victim’s heart; the laceration did not penetrate into the thoracic cavity; and there was no pneumothorax or pleural effusion. However, he submitted that by comparison there were even more aggravating factors:
關‍大律師指出申請人事發時年72 歲，曾造過心臟手術，而他對傷者的襲擊，並無對後者心臟造成嚴重創傷，傷口沒有深至胸腔，亦沒有氣胸或肺積水，這些都是求情因素。但相比求情因素，加刑因素則更多：

The incident was induced by a quarrel over a chess game.
事件誘因是下棋引起的爭執。

When the applicant went to the scene with two knives on him, three days had already elapsed since the quarrel8. The knife seized by the police was lethal, as was the other knife with which the applicant attacked the victim.
爭執後3 天 ，申請人仍帶備兩把刀到場。警方撿獲的一把刀已能致命，申請人用以襲擊傷者的另一把刀亦足以致命。

The applicant concealed the knives in a newspaper.  This showed that he was coolheaded and his acts were premeditated.
申請人將刀藏於報紙內，是冷靜及有預謀的事。

When the applicant took out a knife, the 78-year-old victim chose to run away, but the applicant did not let him go and chased him for 60 to 70 metres.
申請人亮刀時，78 歲的傷者已選擇逃跑，但申請人仍追60至70 米仍不罷休。

The applicant did not stop the attack even after he stabbed the victim under his armpit.  The victim tried to snatch the knife but failed, and his left hand was also injured.
申請人剌了傷者腋下後沒有停止襲擊，傷者試圖用手搶走刀子，但不成功，左手亦受了傷。

The victim ran inside the office of a District Councillor and stayed there and hence managed to free himself from the applicant, but the applicant remained outside the office and shouted abuses.
傷者逃至區議員辦公室，成功躲避；申請人仍在辦公室外謾罵。

The applicant pleaded not guilty and put the blame on the victim.
申請人不認罪，將責任推在傷者身上。

Mr. Kuan submitted that the applicant mounted the attack, which was premeditated, when he was coolheaded.  He submitted that the victim did not suffer more serious injuries not because the applicant showed mercy towards him, but because of sheer luck.  He also contended that the victim’s injuries were one of the sentencing considerations but not the sole sentencing factor.
關‍大律師指申請人作出的襲擊是冷靜及有預謀的，傷者無受到更嚴重的傷害純屬僥倖，並非申請人留手。傷者傷勢祇是判刑因素之一，並非唯一因素。

Mr. Kuan averred that in the circumstances of the present case, the starting point of 3½ years was by no means manifestly excessive.  In view of the applicant’s complete lack of remorse and taking into account his age and physical condition, the Deputy Judge adopted what could be described as a lenient approach by reducing the term of imprisonment by 6 months.  Mr. Kuan submitted that 3 years’ imprisonment was not manifestly excessive.
關‍大律師指以本案案情而言，3½ 年量刑起點絕非明顯過重。沈‍法官在申請人毫無悔意情況下，考慮了申請人的年齡及身體狀況而給予他半年扣減，可謂相當寬宏大量。關‍大律師指3 年刑期並非明顯過重。

Our views
本庭所作的考慮

There are no sentencing guidelines for the offence of wounding with intent.  In Hung Kar Chun the Court of Appeal established a range of 3 to 12 years’ imprisonment for this offence (see Yuen Wai Kui9).
有意圖而傷人罪並無量刑指引。上訴庭在熊家駿 一案亦確立了涉及有關罪行的刑期是由3 年至12 年不等 (見袁偉渠 案件)。

It is true that the range of 3 to 12 years is not a sentencing tariff, and the court is not obliged to impose 3 years’ imprisonment as the minimum term.
誠言，該3 年至12 年刑期並非量刑指引，法官無須必定以3 年為最低判刑。

For the offence of wounding with intent, the circumstances of the offence and the background of offenders differ from case to case, and other decided cases are, in our view, of limited reference value.
有意圖而傷人罪涉及的案情事實及犯案人的背景不盡相同，其他案件對本庭而言，其參考價值有限。

We agree with the respondent’s submission that there were aggravating features in the present case.  The applicant had a quarrel with the victim over a chess game.  The attack on the victim was not made when the applicant was in a rage in the heat of the quarrel; instead, one to three days later (the quarrel could have taken place on 20 June, 21 June or 22 June) the applicant, hiding two sharp knives on his person, went to the victim to get even with him.   The
本庭認同答辯人陳詞指本案有其嚴重之處。申請人與傷者因下棋而發生爭執，申請人並非在爭執時因盛怒而襲擊傷者，而是在事隔1至3 天後 (即不論先前爭拗是發生在6 月20 日、6 月21 日或6 月22 日)，身藏兩把利刀前往找傷者算賬。在傷者走避時窮追傷者，用利刀剌傷者。申請人是向傷者的左胸部份進行襲擊，致令傷者左腋下流血。傷者並無遭受更嚴重的傷害、並無傷及心臟或胸腔，屬實可幸。但申請人的襲擊行為是可令致傷者受到嚴重傷害的。

Decision
裁定

For the above reasons, we have granted leave to appeal against sentence and, treating the application as the appeal proper, we have allowed the appeal, set aside the sentence of 3 years’ imprisonment and substituted therefor imprisonment for 2 years and 3 months.
基於上述理由，本庭批准就判刑提出的上訴申請許可，並視之為正式上訴。上訴得直，3 年監禁刑期撤銷，改判2 年3 個月監禁。

Mr. Franco Kuan, Senior Public Prosecutor of the Department of Justice, for the HKSAR
答辯人：由律政司高級檢控官關百安代表香港特別行政區

Mr. Derek Hu, instructed by Messrs. K.B. Chau & Co., for the Applicant
申請人：由周啟邦律師事務所轉聘胡德理大律師代表