HKSAR v. Chow on

CACC 194/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 194 OF 2005

(ON APPEAL FROM DCCC NO. 1309 of 2004)

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BETWEEN

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Before:   Hon Stuart-Moore VP and McMahon J

Date of Hearing: 8 December 2005

Date of Judgment: 8 December 2005

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.On 13 April 2005, the applicant was convicted in the District Court, following a trial before Deputy Judge Mierczak, of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212 (1^st charge) and common assault, contrary to section 40 of the same ordinance (2^nd charge).  He was sentenced on these charges to 5 years and 6 months and to 6 months’ imprisonment, respectively, with 3 months of the sentence on charge 2 ordered to run consecutively, making 5 years and 9 months’ imprisonment in total.  The applicant now seeks leave to appeal against sentence.

The facts

2.In essence, charge 1 amounts to a “glassing” of the victim (PW1) who the applicant struck twice in the face and once on the chest in quick succession.  Leaving aside the chest wound, this left a number of facial injuries and long-term damage to the right eye.  When PW1’s friend (PW2) tried to push the applicant away, he was kicked in the ribs.  This gave rise to charge 2.

3.The incident, at about 4:00 am on 12 June 2004 in a bar in Central, which gave rise to these offences was in itself fairly trivial.  PW1 had accidentally stepped on the applicant’s foot after which, for about ten minutes, the applicant persisted in nudging PW1 in the small of his back with his fist.  The applicant then walked away for about a minute only to return and stand immediately in front of PW1, so close as to be almost on top of him.  The applicant then indicated that PW1 should leave and PW1 found himself being pushed towards the dance floor area inside the bar.  Eventually, PW1 was pushed off balance and he responded by pushing the applicant who stumbled.  The applicant then picked up a martini glass from a table and ran at PW1 with it.  The judge’s description of the actual attack on PW1, which he accepted, was in these terms:

“… PW1 grabbed the glass with his right hand which he pulled down and then got the defendant in a headlock.  He never hit the defendant but held him and thereupon PW1 was hit by others to the back of the head and in the mouth.

4. PW1 says he was stunned and released the defendant from the headlock.  Thereupon the defendant hit PW1 in the face with the glass which was held by him.  PW1 tried to protect himself with his hands and he, that is PW1, was again hit with the remnants of the glass which had smashed on the first occasion.  He was hit with it to the left brow.  He says he was sliced open and the defendant then hit PW1 a third time with the stem of the glass to the upper right-hand chest area.  PW1 also sustained various lacerations to his hands as he had tried to stop being hit by the glass further.

5. PW1 found it impossible to attack back as he was trying to defend himself throughout …” (Appeal bundle p. 10)

4.A similar description of events was given by PW2 who saw the applicant swing the glass and strike PW1 on the head.  When the glass broke, the applicant hit PW1 three or four more times before PW2 was able to intervene.

5.The medical and photographic evidence bore out the descriptions of the attack to the face of PW1, and other lacerations were found on his hands and chest.  The most serious injury was to the eye but there were also multiple skin lacerations over PW1’s forehead and nose.  Physical examination revealed that the right eyeball had been ruptured with a laceration to the right cornea and an emergency operation was carried out to repair the injury.  The evidence is not clear as to whether PW1 was discharged on 14 June or 18 June as the doctors provided both dates.  According to a report dated 18 January 2005, prepared by Dr Chan Shun-kit, the wound to PW1’s cornea had by then healed but a “persistent foreign body sensation” remained.  The doctor stated that “in view of his persistent right eye discomfort, he [PW1] has 10% permanent disability regarding this injury”.

The application

6.Mr Plowman SC, on behalf of the applicant, submitted, firstly, that a starting point of 5½ years on the 1^st charge was too high having regard to the nature of the injuries suffered by PW1 and when compared to the facts in another case where similar injuries had been caused.  Secondly, it was argued that a consecutive term of 3 months should not have been imposed for the 2^nd charge.

7.Mr Plowman relied to some extent on the evidence given by Dr Chan, who had been tendered at trial by the prosecution for cross-examination, who, having confirmed his medical report, added that a post-operative fundal examination (by using an ophthalmoscope to examine of the back interior of the eye) of PW1 carried out on 1 April 2005, a week before the trial, was normal and there no longer existed any injury to the inside of the eyeball.  PW1 had, however, developed corneal astigmatism and had needed to wear glasses since the incident.  Dr Chan agreed that the 10% “permanent” disability might lessen over a period of time.

8.With this general background, Mr Plowman referred us to the decision in Attorney General v Low Wing-wah, CAAR 8/1995 where this court on a review of sentence indicated that a sentence in the region of 5 years’ imprisonment after trial would have been appropriate on facts revealing that the victim was struck across the eye with a chopper as he fell over a chair to get away from the respondent.  The sight in that eye was lost.  Again, there was a trivial start to the trouble which was later to come, but there were a number of features in that case which distinguish it to a greater or lesser degree from the case presently before us.  The respondent in CAAR 8/1995 was 59 years old, with no predisposition towards violence and was treated as a man of “perfectly good character”.  He had admitted responsibility for the assault which was confined to one blow and the trial was fought on the issue of intent alone.  There had also been an element of provocation on the part of the victim who at some stage during the quarrel preceding the wounding “threatened the respondent with a full teapot”.  This led the respondent to lose his temper and to return a few minutes later in the company of his brother and in possession of the weapon.

9.In the present case, the applicant, aged 43, has appeared a number of times before the courts and has twice previously been convicted of assault although these offences were some considerable time ago.  Much more importantly, on the question of sentence, the judge was satisfied that there were at least three deliberate blows struck by the applicant using at first the glass and then the remnants from it after it had broken.  Furthermore, PW1 had done nothing to provoke the attack in any deliberate sense.

10.However, the judge was not apparently provided with a copy of the judgment in Attorney General v Low Wing-wah (above).  Obviously, astigmatism and a 10% disability to the eye cannot be equated, as Mr Shiu on the respondent’s behalf accepted, with the loss of an eye.  On the other hand, this was a deliberate and sustained attack to the face and body using glass.  Nevertheless, whilst the resulting damage to PW1’s eye might have been much worse, the fact remains that by good fortune no greater damage was done.

11.Plainly, an attack of this kind had to be visited with a severe sentence.  Having said this, if the judge had been made aware of Low Wing-wah’s case, we consider that he would not have adopted a starting point as high as 5½ years’ imprisonment on the 1^st charge.  On this charge, it is our view that 5½ years’ imprisonment was manifestly excessive and that, more appropriate to the facts of this case, a sentence of 4½ years should have been imposed.

12.Turning to the second of Mr Plowman’s points, he submitted that the common assault upon PW2 formed part of a “single transaction” which did not justify an additional sentence.  Mr Shiu was minded to concede that this ground was made out.  However, we do not agree.  PW2 was kicked as he tried to render assistance to PW1, following the serious attack which the applicant had launched upon PW1 and, in these circumstances, we can see no reason why the applicant should not have received an additional sentence for the assault in charge 2.  A simple example, where concurrent sentences almost certainly would be appropriate, might be where a person swinging a chair in the course of a violent argument struck two people within a short space of time, but this was not such a situation.  Here, PW2 was justifiably trying to help PW1 who was being seriously and repeatedly assaulted by the applicant at the time.

13.Lastly, on this point, it is plain that the judge had considered totality when ordering that only 3 months of this sentence should run consecutively.

Conclusion

14.We shall grant leave.  Treating the hearing as the appeal, the sentence on the 1^st charge is reduced by 12 months to 4½ years. We shall not interfere with the sentence on the 2^nd charge or the order that 3 months of that sentence should run consecutively.  The total sentence, therefore, is 4 years and 9 months’ imprisonment.  To this extent, the appeal is allowed.

Mr Gavin Shiu, SADPP, of the Department of Justice, for the Respondent.

Mr Gary Plowman, SC, instructed by Messrs Howell & Co., for the Applicant.