HKSAR v. Wong Ku

HCMA000638/2002

HCMA638/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 638 OF 2002

(On appeal from NKCC2959 of 2002)

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Coram: Hon Gall J in Court

Date of Hearing: 25 October 2002

Date of Judgment: 25 October 2002

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J U D G M E N T

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1.The appellant was convicted after trial on 3 July 2002 of one charge of wounding, contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212.

2.The facts put forward by the prosecution at trial and which were accepted by the magistrate were that on 24 April 2002, the victim of the attack which is the subject of the charge visited the home of the appellant where he was living with the child of their marriage. The marriage had deteriorated to a point where divorce proceedings were underway, and the victim to the charge had gone to the premises because she had heard that her son was ill and further because she wished to take the boy to be educated in China.

3.The appellant and his wife started to talk about custody of the child and an argument arose between them. The appellant then pressed his right forearm against her neck, tightly restricting her breathing. She pushed him away. The appellant then went to the kitchen and returned with a chopper. (I have seen the chopper and it is a large kitchen chopper.) His wife was then sitting on the sofa together with her son. The appellant used the chopper to strike a blow to the right hand side of her forehead, inflicted an injury, and then struck further blows to her which she warded off. These blows were seemed not to have been with the sharp edge of the chopper but with either the flat of the side of the chopper or the back of it. She sustained a further wound to her neck. She bled. The appellant rang the police who arrived and the wife was sent to hospital for treatment. She received a total of eight stitches to the wounds to her forehead and right chin and suffered no residual damage.

4.The learned magistrate gave full and complete reasons. The appellant initially appealed against both conviction and sentence but abandoned his appeal against conviction.

5.By the consent of the respondent, I have before me a Probation Report prepared for the purposes of a bail application pending appeal and an affirmation from the wife of the appellant setting out her present feelings toward him. The Probation Report was compiled on 16 July 2002 after the conviction, still maintains a denial by the appellant as to his culpability in this matter and he said to the Probation Officer that the injuries were caused accidentally. It sets out fully his background and has been of some assistance to me.

6.The affirmation of the wife of the appellant states that she has visited him several times since he was placed in prison. She now forgives him and that he had shown her remorse. She says that he has provided a regular maintenance for her and her son and shows his love to her and his son. She knows he cares for them although I am told by Mr Mitchell-Heggs for the appellant there is no prospect of marital reconciliation.

7.Whilst conceding that the quantum of sentence is unremarkable, Mr Mitchell-Heggs argues that various matters could have been considered by the magistrate and were not. He firstly argues the magistrate appeared to have taken more serious view of the nature of the case than was justified or reasonable in all the circumstances. In drafting that grounds of appeal, he refers to the Statement of Findings of the magistrate. I have considered all the magistrate has said and do not need to set it out. The magistrate's findings were from the evidence given and a hard fought trial.

8.The appellant pleaded not guilty and pursued an attack upon the wife and the rest of the prosecution evidence with vigour. As he was entitled to do but he cannot on the one hand say he is prosecuting his defence with huge vigour and maintaining affirmatively that he did not commit the offence and the matter was an accident, and at the same time say the magistrate was wrong in taking a serious view of what happened in not finding that there was substantial remorse at the time of sentence.

9.Mr Mitchell-Heggs further, in his grounds of appeal, argues that the wife overdramatised the case at the time of the arrival of police and during her testimony, and the magistrate, was not fully alive to that circumstance.

10.In his Statement of Findings, the magistrate said :

".... I am further satisfied that she did not show any bias and certainly did not exaggerate the incident at all. She had been required to recall in minute detail events that had happened some months previously and in very trying and emotional circumstances. ...."

The magistrate was fully alive to the proposition that she might have overdramatised the events of that day and rejected them having seen the witness give evidence and being strongly cross-examined in respect of it.

11.Further, Mr Mitchell-Heggs argues that there was significant provocation underlying the appellant's violent behaviour at the material time and that the appellant showed obvious remorse in putting the weapon down, breaking down in tears, calling the police and making a full and frank confession to the arresting officer.

12.At some degree the appellant appears to be endeavouring to have the best of both worlds : to have the benefit of sincere remorse at the time the offence had occurred and by denying that he had committed the offence at all in court. I am not satisfied that the magistrate has in any way approached that part of the proceedings wrongly and there is nothing in that ground of appeal.

13.The final ground of appeal relates to events since sentence. Mr Mitchell-Heggs argues that the sentence can now be seen to be manifestly excessive and harsh having regard to the background information and the Probation Officer's Report and the appellant's abandonment of his appeal against conviction and his express desire now to accept unreservedly his culpability in this matter and put forward his earnest remorse and regret for his wrongdoing at the time and his regret for the misguided and ill-advised attempt he made at trial to excuse his conduct.

14.I accept that there are occasions when an appeal court can vary a sentence as a result of events that take place after the sentence is passed and prior to the appeal being heard. Implicit in this ground of appeal is the acceptance that the sentence at the time it was passed was not manifestly excessive nor wrong in principle, and with that I agree. I must therefore consider whether the remorse now shown by the appellant and the material in his background available from the report make a reduction in sentence appropriate on the basis of mitigation. I find they do not.

15.The appellant is remorseful - now that he has been sentenced and is serving his term of imprisonment, that remorse has come on at a very late time and in anticipation of this appeal. I am unable to say in any way that the magistrate's sentence was wrong nor that I should interfere with it now. The appeal against sentence is dismissed.

Representation:

Ms Lynda Shine, SGC of Department of Justice, for HKSAR

Mr Mitchell-Heggs, instructed by Messrs Christopher K.Y. Wong & Associates, for the Appellant