HKSAR v. Chau Yuet Ming

CACC000344/1998

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL

1998, No.344
(Criminal)

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Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, JJ.A.

Date of Hearing: 22 September 1998

Date of Judgment: 22 September 1998

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant in this matter pleaded guilty to causing grievous bodily harm, it being alleged that he, on 13th November 1997, at Fanling Recreation Park, Cheung Wah estate, Fanling, unlawfully and maliciously caused grievous bodily harm to Man Yim-fan with intent to do her some grievous bodily harm. He was sentenced by Wong J. to imprisonment for five years and he now seeks leave to appeal against that sentence.

2. The facts revealed that the applicant, who was 32 years of age, had become friendly with the victim in August 1997. Initially their friendship deepened, however, by October of that year her feelings had changed and she told him that she no longer wanted to spend time with him. He was not prepared to accept this rebuff and continued to communicate with her. Eventually at his insistence she agreed to meet him at about 6 o'clock on the evening of 13th November in the Fanling Recreation Park. He said that he wanted to return some gospel books to her.

3. The facts thereafter I take from the Summary of Facts. The victim arrived at the park at about 6 p.m. She saw the applicant in a pavilion which was built in the middle of a lake inside the park and went to meet him there. They sat on a bench in the pavilion and he asked her to return the books to him. She said she hadn't brought them along and there was then no conversation for some 5 minutes or so until suddenly he waved an electric wire in front of her and then wrapped it around her neck. She felt the wire tightening on her neck and felt great pain. She heard the applicant calling "You make a fool of me" and then, whilst struggling, she lost consciousness.

4. A security guard walking nearby saw her lying on the ground and the applicant on his knees beside her massaging her back. The guard could see blood coming from her head and a piece of electric lying on the floor about a foot away from her head. The victim was vomiting and had difficulty in breathing. The applicant then called the police and shortly thereafter police and ambulance arrived.

5. The trial judge when sentencing said:

"Now, it is true from the reports that you were suffering from depressive moods at the time of the offence, because of your worry in life and also the prospect of your getting a job. Now, I also consider your age and your education background. I am also reminded by Mr. Matthews of the two cases of the Court of Appeal. Now these two cases deal with circumstances which of course are not entirely employed; the circumstances are different.

As I have said before, strangulating someone with this electric wire is a very dangerous act. If what you did had been successful, then you would have faced a charge of murder. Wounding with intent a person with the intention to do that person serious bodily harm is nevertheless a very serious offence. But to use a piece of electric wire is as bad as to use a knife or any other weapons. These kind of actions must not be allowed to happen and if you are treated too leniently, it will be sending a wrong message to people like you and to the public. As I said about this sort of thing is not to be regarded as a joke and is a question of life and death.

Now, having considered all the factors and the mitigation I consider that a sentence of eight years would be appropriate, but because of the various matters and your plea of guilty, I would give a discount of three years, reducing the sentence to five years' imprisonment."

6. Mr. Sadhwani, who appears for the applicant today, argues principally that the starting point was too high. He points to factors to which, he submits, the judge failed to give proper weight. The applicant is 32 years of age. He was, it is clear from the psychiatric report, suffering from a severe depressive condition. His violent actions were clearly out of character. He is a person who has had never had any previous conflict with the law. Further, Mr. Sadhwani argues that after the attack, he desisted and then attempted to resuscitate the victim and has shown a real degree of remorse.

7. This was a bad offence. The attack was clearly premeditated. It occasioned grave injury which the doctor said produced a life threatening condition. There was a degree of premeditation as the applicant arranged the meeting and brought the wire to the scene. He had clearly contemplated using it and then did use it. A substantial degree of force was used which caused serious injury.

8. We have considered all of these matters but also bear in mind the depressed state from which the applicant was suffering, that he desisted avoiding consequential injury which would have been very much more serious, that he tried to resuscitate the victim and is genuinely remorseful for what he did.

9. In all of the circumstances, we are satisfied that the starting point of 8 years was excessive. A proper starting point would have been 6 years. Given the applicant's plea, this can properly be reduced to 4 years.

10. The application is therefore allowed. The hearing of the application is treated as the hearing of the appeal and the sentence of 5 years is varied to one of 4 years.

Representation:

Mr. Francis Lo, S.A.D.P.P. (Ag.) for the Respondent.

Mr. Kamlesh Sadhwani instructed by Messrs. Littlewoods for Applicant.