HKSAR v. Jatinder Singh

CACC 328/2017

[2019] HKCA 113

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 328 OF 2017

(ON APPEAL FROM HCCC NO 206 OF 2016)

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Before:  Hon McWalters and Zervos JJA and Yau J in Court

Date of Hearing:  14 December 2018

Date of Judgment:  14 December 2018

Date of Reasons for Judgment:  13 February 2019

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R E A S O N S   F O R   J U D G M E N T

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Hon Yau J (giving the Reasons for Judgment of the Court):

Introduction

1.The applicant was charged with an offence of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap 212. The particulars of the offence are that he unlawfully and maliciously wounded Madam Syairoh (“the victim”) with the intent to do her grievous bodily harm on 8 January 2016 at No 251, Pak Sha Tsuen, Kung Um Road, Shap Pat Heung, New Territories (“the premises”).

2.On 2 August 2017, the applicant pleaded guilty to the charge and was duly convicted by D’Almada Remedios J. (“the Judge”) in the Court of First Instance.  The Judge obtained a victim impact report on the victim and a psychological report on the applicant before sentencing.

3.On 28 September 2017, the applicant was sentenced to a term of 10 years’ imprisonment.

4.On 13 October 2017, the applicant filed a notice of application for leave to appeal against conviction and sentence.

5.At the conclusion of the hearing on 14 December 2018, we dismissed both the application for leave to appeal against conviction and sentence.  We now give our reasons for the decision.

Facts Admitted

6.According to the facts admitted by the applicant when he pleaded guilty to the offence, the victim was a divorced Indonesian woman born in 1977.  She came to work in Hong Kong in 2012 and later became a Form 8 recognizance holder.

7.She began to live in Room 5 of the premises in 2014.  The premises were a converted shed partitioned into 7 rooms, all occupied by Form 8 recognizance holders.

8.In or about early 2015, the applicant and the victim met each other and became lovers. The applicant, who was also a Form 8 recognizance holder, then moved into Room 5 to live with the victim.

9.The relationship between the applicant and the victim did not last.  In or about September 2015, the victim requested they separate because she found the applicant a violent person.  The relationship broke up and the applicant moved to Room 2 of the premises.

10.The applicant did not leave the victim alone. He kept on pleading with her to get back together.  He also had a habit of following the victim.  In the afternoon of 7 January 2016, the applicant followed the victim to Yuen Long and slapped her many times when she asked him why he was following her.

11.In the evening of the same day in the premises, the victim asked the applicant to come out of his room to explain why he had hit her in the afternoon. The applicant became agitated and told the victim to be careful and that he would kill her.

12.In the early afternoon of 8 January 2016, while the victim was standing outside Room 2, the applicant came out of the room carrying a knife which was 11 inches long with a blade of 7 inches.  Without saying anything, the applicant used the knife to cut the victim’s throat from right to left and he then slashed the knife downwards to the left side of her abdomen.  Blood gushed from the victim’s neck. Immediately thereafter, the applicant ran away.

13.The victim was rushed to Tuen Mun Hospital.  She was intubated for airway protection in the A&E Department of the hospital. In the evening of the same day, emergency surgery was performed.

14.Later in the day of 8 January 2016, the police found and seized the knife near the entrance to the premises.

15.As a result of the assault, the victim sustained the following injuries:

(1)  A 15 cm transverse open sharp neck wound and active bleeding from multiple veins, neck muscles and thyroid and which also included a 2 cm anterior tracheal cut resulting in the exposure of the endotracheal tube;

(2)  A 3.5 cm and 12 cm left chest wall superficial sharp laceration not involving the underlying muscle layer.

16.The victim was discharged from hospital 17 days later on 25 January 2016. She attended the hospital for follow up treatment on 24 February, 23 March and 5 May in 2016.

17.According to medical opinion, the injuries were potentially fatal.

18.On 8 January 2016, the applicant was located and arrested by the police outside the village office in Wong Nai Tun Tsuen.  Under caution in Chinese, the applicant said in English, “I cut my girlfriend” and he used a hand gesture to indicate a cutting motion in front of his own neck from left to right.

19.On 9 January 2016, during an interview under caution with the aid of interpreters, the applicant made, inter alia, the following admissions:

(1)  He met the victim in 2015 when they became boyfriend and girlfriend, and he wanted to marry her;

(2)  In the beginning, the relationship between the applicant and the victim was good but they had quarrels;

(3)  He moved from Room 5 to Room 2 of the premises because the victim did not like him and said he was following her and the two had a lot of fights;

(4)  He followed the victim to Yuen Long and the victim spat on his face first. He then slapped her and she also hit him;

(5)  As to the wounding, he got angry, went inside his room, picked up the knife, brought it out hidden under his armpit and cut the victim before running away;

(6)  He explained and demonstrated how he was standing, face to face with the victim, and took out the knife to slash her. He did not know how the victim got the chest wound;

(7)  He identified the knife he used to attack the victim;

(8)  He ran away because he was scared he would be beaten up by the boys.

The Victim’s Impact Report

20.The victim was interviewed by a clinical psychologist on 18 and 21 August 2017 and a victim impact report was prepared on her.

21.According to the report:

(1)  The victim reported having generalised fear of dark-skinned men since the latter might inflict harm on her. As such, she avoided contact with them when she was on the street and preferred staying at home alone;

(2)  She suffered from post-traumatic stress symptoms, psychological distresses and impairment of function chronically;

(3)  She tolerated pain and fear in relation to her injured area on her neck every day and had to receive injections occasionally to alleviate the pain and take painkillers for sleeping every night. She also had anxiety owing to the uncertainty of whether and when the pain would stop;

(4)  She expressed difficulty in speaking loudly and swallowing big pieces of food;

(5)  Psychological treatment was recommended to the victim but she refused it. She expressed thankfulness and believed her religion would help her recover.

Applicant’s Psychological Report

22.As ordered by the Judge, a psychological report on the applicant was obtained.  The applicant was interviewed by a clinical psychologist 4 times on 11, 12, 14 and 19 September 2017 with the assistance of Punjabi interpreters.

23.Although the applicant had pleaded guilty to the offence, he totally denied the charge in the interviews.  He told the psychologist that he had followed the victim on the day of the offence to stop her from working as a sex worker.  There was, however, nothing to support this assertion by the applicant that the victim was doing such work.

24.The applicant claimed that the victim had slashed herself with the knife which he had bought for preparing food.  His description of what had happened was totally different from the summary of facts.  He was unable to explain to the psychologist why he had not sought help to save the victim but had fled the scene with the knife if the victim had used the knife to injure herself. 

25.The psychologist commented that a number of risk factors, namely relationship problem, sexual jealousy, anger feeling, unemployment, and history of physical assault, which were associated with the risk of violence in an intimate relationship, were identified in the applicant. His risk of violence towards his partner was assessed to be moderate. The psychologist was of the view that the applicant should not maintain contact with the victim and might benefit from psychological treatment focusing on his heterosexual relationship, mood management and behavioural control.

Mitigation

26.The applicant was 34 years old and had a clear criminal record at the time of the offence.  He was single and was educated to primary 5 level in India.  He came to Hong Kong in 2014.  He made a non-refoulement claim and was a Form 8 recognizance holder.

27.Counsel for the applicant submitted in mitigation that the assault had been committed on the spur of the moment, as a result of the deep love the applicant had for the victim which clearly had not been reciprocated.  The breaking up of the relationship between the applicant and the victim, and the failure of the applicant to persuade the victim to reunite with him, had resulted in anger and jealousy being built up in the applicant.

28.Shortly before the assault, the applicant found that his belongings inside his room had been damaged and taken out of the room. The applicant believed that the victim had been in some way responsible for that.  He took along the knife which he had used for preparing food and used it to inflict the injuries on the victim.

29.The applicant was remorseful for what he had done and frankly admitted under caution that he had cut the victim across her throat immediately after he was arrested by the police.  He also demonstrated how he had injured the victim and told the police where he had thrown away the knife.

30.In respect of the recovery of the victim from the attack,  counsel for the applicant pointed out that although the victim had suffered both physical and psychological damage, and would always bear the scars, she did not suffer any long term loss of speech.  She had recovered both physically and psychologically to the extent that she could continue her everyday life without the need of any further surgery.

Sentence

31.After considering the facts admitted by the applicant, the victim impact report, the psychological report of the applicant and the mitigation, the Judge sentenced the applicant to 10 years’ imprisonment.

Grounds of Appeal against Conviction and Sentence

32.The grounds of appeal against conviction of the applicant are as follows:

(1)  He was forced by his lawyer to plead guilty;

(2)  He did not receive any discount in sentence although his lawyer had told him that he would;

(3)  Another lawyer who conducted the mitigation on his behalf acted against him;

(4)  Everybody lied to him and he had evidence to prove it.

33.The applicant, however, did not state any ground of appeal against sentence.

34.The applicant did not file any submission in support of his application for leave to appeal against conviction and sentence.  He also did not file any affirmation/affidavit detailing the incompetence of his legal representatives nor did he sign any waiver of legal professional privilege despite the directions given by Master Cheung of the High Court.

35.The applicant instead wrote a letter dated 31 August 2018 to the court. The applicant said in the letter that he had not inflicted the cuts on the victim and it was the victim who had cut herself.  When he told the police about this the police told him to change his statement or he would be charged with murder.  Fearing that the police would kill the victim and accuse him of murder, he confessed to the wounding of the victim in order to save her life.

36.He also repeated his allegations against his lawyers and said that the victim impact report was fabricated.

Appeal Against Conviction

37.As rightly pointed out by the respondent, in HKSAR v Shum Chiu[1], which was cited with approval by the Court of Appeal in HKSAR v ManJaiarraya Natthasiri[2], it was held that section 82(1) of the Criminal Procedure Ordinance which provided that a person convicted of an offence on indictment might appeal to the Court of Appeal was equally applicable to a conviction entered upon the person’s own plea. 

38.For an appeal against conviction which has been entered upon an appellant’s own plea, the appellant must establish some overriding factors which render the plea a nullity or the conviction unsafe and unsatisfactory. The appellate court will naturally have to approach the matter with considerable circumspection.

39.In the case of HKSAR v Wong Chi Yuk[3] the Court of Appeal, after reviewing a number of authorities, said that an unequivocal guilty plea could be rendered a nullity if:

(1)  The facts admitted by the defendant did not amount to the offence with which he was charged;

(2)  The admitted facts were equivocal as to guilt;

(3)  The plea was tendered to a charge which was defective on its face or invalid or unclear;

(4)  The plea was tendered involuntarily, eg, induced by duress or misrepresentation or was not an exercise of free choice;

(5)  The plea was induced by fraud or made under a fundamental mistake; or

(6)  The plea did not result from a deliberate and informed decision.

40.In the decision of The Queen v Wong Ching Wah[4], which was adopted with approval by the Court of Final Appeal in HKSAR v Shum Wan Foon,[5] it was said that when a defendant applied to change his plea from guilty to not guilty, it was incumbent upon a magistrate to make sufficient enquiry to ascertain the basis of the application to decide if that basis was sound in fact and in law.  As to what would constitute sufficient enquiry, the Court of Final Appeal said that it would depend on the circumstances of the case and the basis of the application.

41.Although these authorities dealt with appeals against conviction upon a guilty plea from the magistrate’s court which is governed by a different statute, there is no reason why the principles should not apply to an appeal against a conviction on indictment.  

42.In the present case, the applicant was represented by counsel assigned by the Director of Legal Aid during all the proceedings which were conducted in English with the assistance of either Punjabi or Urdu interpreters.  The applicant confirmed that he understood what these interpreters said.  He initially indicated a plea of not guilty and the case was set down for trial. On the first day of trial on 2 August 2017, the applicant pleaded guilty to the offence and admitted to the summary of facts read out in open court by the prosecuting counsel.  The antecedent statement of the applicant was also read out and admitted by counsel for the applicant.  After some discussion the case was adjourned for sentence pending an impact report on the victim.

43.On the day of sentence on 31 August 2017, the applicant was represented by another counsel, also assigned by the Director of Legal Aid.  After taking instructions from the applicant, counsel had a discussion with the Judge about obtaining a psychological report on the applicant and the amount of discount in sentence that should be given to the applicant for his guilty plea.  The Judge decided to obtain the report and adjourned the sentencing to 28 September 2017.

44.On the day of sentence, the Judge, in view of the denial of the offence raised by the applicant in the report, stood down the case for counsel to take instructions from the applicant. When the court resumed counsel informed the Judge that the applicant maintained his plea of guilty and had put his instructions down in writing.  She also explained to the Judge that the applicant had denied the offence in the report because the victim had not been supportive of him in the victim impact report and this had angered him.

45.In order to be certain about the plea of the applicant, the Judge herself asked the applicant if he intended to maintain his plea of guilty and the applicant said yes.  The Judge further asked the applicant to confirm that his plea of guilty had been entered voluntarily and the applicant again said yes.

46.It can be seen that if the plea of the applicant had not been entered voluntarily there were plenty of opportunities for him to make a complaint to the court when the proceedings were adjourned on at least two occasions, pending the victim impact report and the psychological report of the applicant himself.  He even maintained his plea of guilty and confirmed it to be voluntary personally when he was questioned by the Judge.

47.In view of the various allegations made by the applicant against his legal representatives, Master Cheung of the High Court made an order on 24 August 2018 that the applicant was to file an affirmation detailing the allegations together with a signed waiver of the legal professional privilege should he intend to advance counsel incompetence as one of the grounds of appeal.  The applicant has, however, failed to do so.

48.In any event, the proceedings of the present case were conducted in such a way that the applicant was fully aware of what was taking place during every stage of the hearing and the Judge herself had made enquiry with the applicant to confirm that his plea of guilty had been entered voluntarily and unequivocally.  We are of the view that it is not necessary to conduct any further enquiry in this regard.

49.Moreover, contrary to the allegation of the applicant that his lawyers had acted against him, his counsel had actually made full and thorough mitigation on his behalf.  It is also not true that the applicant did not get any discount in sentence as the Judge had given him a full one-third discount for his guilty plea.

50.As pointed out by Zervos JA in HKSAR v Nur Mei Lina[6]:

“It would be rare indeed for an applicant to succeed in showing that a conviction is unsafe or unsatisfactory where an unequivocal plea of guilty has been properly entered.”

51.The plea of the applicant in the present case has no doubt been entered unequivocally and voluntarily and does not fall within any of the instances which would render a conviction unsafe or unsatisfactory.

52.There are no merits in the application for leave to appeal against conviction which has clearly been motivated by the wrong perception of the application that he has received no discount in sentence and the sentence was too heavy.  The application is refused.

Appeal Against Sentence

53.Having considered the admitted facts of the case, the victim impact report and the psychological report of the applicant, the Judge was of the view that:

(1)  The assault had not arisen out of any domestic argument and had been a premediated attack by the applicant as a revenge on the victim when he considered that his love for her had not been reciprocated;

(2)  The assault had been inflicted in one of the most vulnerable areas of the victim, slashing her neck from ear to ear with a dangerously sharp knife, intending almost to kill her;

54.There are no sentencing tariffs for the offence of wounding with intent.  This is only logical because the circumstances under which the offence is committed can vary substantially, so do the sentences.  The sentence of each case must depend on its own facts.  It is also for this reason that no meaningful sentencing tariffs can be laid down for this offence.  Assistance in sentencing may, however, be obtained from the case of HKSAR v Chan Chun Tat[7], cited by the counsel for the applicant in mitigation and referred to by the Judge in sentencing, in which the Court of Appeal set out the following factors to be considered in relation to an offence of this type:

“… many of the factors to which a court will have regard in determining the gravity of a section 17 offence and the culpability of the offender will relate to the type of harm intended to be inflicted, the means by which that harm was inflicted and the circumstances generally surrounding the assault. Thus, without attempting to exhaustively identity all the relevant factors, the usual ones will be the extent to which the assault was premeditated, the reasons or motivation underlying the assault upon the victim, the mental or emotional state of the assailant at the time of the assault, whether alcohol or drugs contributed to the actions of the assailant, whether the assault was committed by the assailant alone or as part of a group, the type of weapons employed, the level of force or aggression and the persistence with which the assault was pressed home, the injuries caused to the victim and the effect of the assault upon the victim and those close to him or her.” [8]

55.The Judge further identified, and in our view correctly, the following relevant factors in sentencing:

(1)  The assault was premediated and was a completely unprovoked attack, entirely initiated by the applicant on the victim who was unarmed.

(2)  The applicant showed no mercy to the victim both during and after the assault.

(3)  The applicant demonstrated a complete disregard for the victim’s life, intending to cause her really serious harm.

(4)  The victim was still suffering from severe pain of the injured area on her neck which she was uncertain as to whether and when it would be healed and such pain could only be alleviated by the use of a pain killer.

56.The Judge also referred to the physical and psychological injuries of the victim as set out in the summary of facts and the victim impact report.

57.Having considered these factors, the Judge was of the view that the offence committed by the applicant was at the upper end of the scale for sentencing.  A starting point of 15 years’ imprisonment was considered appropriate and adopted.  The Judge agreed with the counsel for the applicant that the case did not call for enhancement of the starting point even though the applicant was a Form 8 recognizance holder and a torture claimant.  The applicant was given a full one-third discount for his guilty plea.

58.Wounding with intent is a very serious offence which carries a maximum sentence of life imprisonment.  Its serious nature is further confirmed in the statement of principle, which was upheld in HKSAR v Lau Cheong and Another[9], that mens rea for the offence was a sufficient mens rea for the offence of murder in case the victim died.  Although the usual range of sentence for this type of offence is between 3 to 12 years’ imprisonment, it is incumbent upon the court to assess the culpability of the offender to determine the appropriate sentence to be imposed. 

59.As pointed out in Chan Chun Tat, little was to be gained in terms of sentence by embarking on a comparative analysis of other cases.  In the present case, the Judge properly directed herself on the relevant factors to be considered, and came to a correct conclusion that the culpability of the applicant was at the upper end of the scale for sentencing.

60.In this case the applicant used, as correctly described by the Judge, a dangerously sharp knife to slash across the neck and downwards to the abdomen of the victim, cutting multiple veins and neck muscles as well as the thyroid gland and the trachea.  It is common knowledge that the neck is a vulnerable and vital part of the body, as the trachea and some major blood vessels are running through it.  According to medical opinions the injuries inflicted on the victim were potentially fatal.  It is quite obvious that the intention of the applicant was not only to cause serious bodily harm to the victim but to kill her.  The applicant should consider himself very  fortunate that he has not been charged with attempted murder.

61.Subsequent to the hearing on 14 December 2018, the applicant wrote a further letter dated 18 December 2018 in Punjabi to the respondent which this Court received together with the translation on 15 January 2019.  In the letter the applicant cited 2 cases of wounding with intent in which the court adopted respectively 6 years’ and 8 years’ imprisonment as the starting points.  Due to the scant information given by the applicant, only one of these cases has been identified. It is HKSAR v Pun Mahendra & 3 Others[10] in which the starting point adopted was 6 years’ imprisonment. 

62.The victim in that case, however, suffered far less serious injuries of only lacerations to the scalp.  There were also no permanent or long-term physical or psychological harm to the victim.  As pointed out above, the sentence of each case will depend on its own facts and little is to be gained by embarking on a comparative analysis of other cases.  We are therefore of the view that the letter added nothing new to the grounds of appeal of the applicant.

63.The sentence of 10 years’ imprisonment imposed on the applicant is neither manifestly excessive nor wrong in principle.  The application for leave to appeal against sentence is refused and the appeal is dismissed.

Mr Andrew Li, SPP of the Department of Justice, for the respondent

The applicant appeared in person