HKSAR v. Tong Kim Ching

CACC000481/2001

CACC 481/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 481 OF 2001

(ON APPEAL FROM DCCC NO. 746 OF 2001)

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Coram: Hon Stock JA and Lugar-Mawson J in Court

Date of Hearing: 28 May 2002

Date of Judgment: 28 May 2002

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1The applicant pleaded guilty in the District Court before Deputy Judge Mackintosh to one charge of wounding with intent to cause grievous bodily harm, contrary to section 17(a) of the Offences against the Persons Ordinance, Cap. 212. The applicant now seeks leave to appeal against the sentence of six years' imprisonment which was then imposed.

2The offence took place on 20 May 2001. The victim of the attack was the applicant's wife who had left him and was residing with another man in a flat in Lai Chi Kok Road, Kowloon. The applicant was then aged about 38 years and, until this offence, had a clear record. He was married in 1993, and there are two children of the family. Not long before the commission of this offence, the wife had moved out of the matrimonial home with the children and, not surprisingly, the applicant was upset and depressed, leading in early May to an attempted suicide. A suggestion has been made that upon his discharge from hospital he went home to find that property had been emptied from his place of residence.

3On 20 May he followed the wife to her new home. He came up behind her at a stairwell near her residence. He grabbed her arm, twisted it behind her back, and threatened that he would carry on twisting it until it broke. He then produced a knife some 21cm in length with a blade of 11 cm. It was pointed and had a sharp serrated edge. He held her down in order to use the knife upon her, and he then attacked her face and neck and chest with the knife. The judge described the attack as "a vicious and unrestrained attack with that knife, slashing her face, ripping open her throat and stabbing her in the chest". There were, as a result, multiple wounds: two 6 cm cuts in a V shape on her cheek, a cut to her lip, another to her nose, and a wound to her neck - a 12 cm wound to the throat so deep that it exposed her trachea; and the chest wound was so deep that it caused the lung to collapse. The judge saw the scarring before he sentenced on 11 October 2001, which was five months after the event, and he noted heavy facial, neck and chest scarring.

4Before sentence was passed there was a Newton hearing to determine certain issues of fact. The applicant asserted that he went to see his wife not in order to attack her, but in order to talk to her, and that he attacked her only in response to her conduct and that he used the knife only when the wife's cohabitee came at him with a hammer, and so, as he put it in his evidence during the Newton hearing, he was effectively acting in self-defence, or by reason of a threatened attack with this hammer. It was, he said, all a momentary impulse, a momentary loss of control. The judge, however, rejected the applicant's case.

5He found that "... this was an attack from the very start. The defendant always intended violence. He was not as he claimed simply wanting to speak to her." He was satisfied that the cohabitee did indeed go to fetch a hammer but only when he had seen the knife produced and that once he arrived back at the scene of the attack, either the applicant had already attacked the victim or the carrying of the hammer, in any event, pay no part whatsoever in the applicant's use of the knife. "I reject", the judge said "any suggestion that there was any material threat from this hammer... I am sure that the production of this knife took place before the hammer came on the scene and that the sole purpose of producing the knife was to attack [the wife]... Neither was this a momentary loss of control by the [applicant]; he plainly intended violence all along." He said, when sentencing, whilst he was willing to accept that the applicant did not go to the victim with "the intention all along of stabbing her, nevertheless you were willing to take the knife out and use it when the occasion arose and you became boiled up in anger".

6The judge took the view that the proper range of sentence before discount for mitigation exceeded the District Court's jurisdiction, and that the case should have been brought in the High Court. He took a starting point of eight years' imprisonment and, for the applicant's plea, he reduced that by one quarter. Given the nature and extent of the challenge to the facts, a challenge which had failed, he did not think it appropriate to give the full one-third discount for the plea of guilty. Accordingly, the judge sentenced the applicant to a term of six years' imprisonment, saying that he was satisfied that the sentence gave a meaningful discount from the District Court's maximum jurisdiction.

7There are two grounds of appeal. The first is that the judge erred in not giving the applicant a full one-third discount for his plea. We do not agree. It is too well established to require a recitation of authorities that a challenge to the facts, if unsuccessful, may, depending on the circumstances, place a defendant in a position less advantageous than had he pleaded guilty and accepted the true facts of the case. In this case, the challenge to the facts was one that required the victim to give evidence of what transpired. But, more particularly, it was a material challenge and the tenor of the applicant's evidence, which we have read, was one of suggested justification for what he did, a tenor and detail which indicated little remorse, if any, for his conduct.

8Mr Hoosen, who appears before us today on behalf of the applicant, says that it was not the applicant who initiated the Newton hearing and that it was the mitigation itself that triggered that hearing. We have had some difficulty in following the point. Counsel then acting for the applicant was no doubt putting matters on his client's instructions, and they seem to us to tally with the mitigation the applicant had offered to the police and which was recited in the admitted facts. Those matters however appeared to the judge, quite rightly in our view, to conflict with other parts of the admitted facts, and the judge accordingly took the view that he was obliged to conduct a Newton hearing. In the circumstances the judge quite rightly decided that the stance taken by the applicant did not justify the full discount which otherwise would have been available.

9By the second ground, it is contended that the sentence was manifestly excessive in that the starting point was too high. Mr Hoosen prays in aid the judge's apparent acceptance that the applicant did not set out to stab the victim; in other words that he did not go to meet her with that intent and further that, as evidenced by two psychiatric reports, the applicant had been suicidal, was depressed and angry. Mr Hoosen urged upon us the stressed emotional condition under which the applicant was at the time of this attack labouring.

10The fact that the applicant did not decide before he set out that he would, willy-nilly, stab his wife is of scant importance in this case, given the fact that he set out to attack her and was going to use the knife if it so proved to him a good idea at the time. The psychiatric reports revealed that the applicant was not suffering from a mental illness at the time of the attack. He was undoubtedly depressed and deeply upset by the breakdown of the marriage, but there is no suggestion that he was other than aware of what he was doing, and the fact is that he set out that day to attack his wife. Whilst of course one has sympathy for a man in his upsetting predicament, and understands the inner torment that must come from unrequited affection, and the departure of a spouse from the matrimonial home, factors which the judge had well in mind, the fact is that this was a very serious attack indeed, and a deliberate one, not offered in the heat of the moment. We have seen the knife in this case. It is a horrifying weapon for the applicant to have used. It has a very long and sharp serrated blade. We have seen the photographs of the injuries inflicted on the victim of this attack. This young woman's face was cut up badly, and there is a long gash across her neck and a deep wound over the trachea. There were cuts to her chest as well. The lady was in intensive care for about nine days, and in hospital for a week or so beyond that. It does not take medical expertise to see that this attack was reckless as to her very life. We fail to see that the starting point can properly be described as manifestly excessive.

11In our judgment, there is no merit in this application, and it is dismissed.

Representation:

Mr A A Hoosen assigned by the Director of Legal Aid for the Applicant

Mr D G Saw, SC, DDPP leading Ms Ho May Yu Lily, SGC of the Department of Justice for the Respondent