The Queen v. Pau Yiu Kwan

CACC000559/1987

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL No. 559 OF 1987

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BETWEEN

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Coram: Hon. Fuad, V.-P., Clough J.A. And O'Connor, J.

Date of Hearing: 4 February 1988

Date of Delivery of Judgment: 4 February 1988

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J U D G M E N T

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O'Connor J., (delivering the judgment of the Court)

1. The Applicant is a 40 year-old man convicted on his plea of guilty to the offence of wounding with intent. He was sentenced to three years imprisonment in the High Court. The victim was his 36 year-old wife. They have been married for 11 years and have a son aged 10. The Applicant had lost a large sum of money due to the collapse of a securities company. He retired from his job with China Light and Power in order to obtain his provident fund payment, which he use to try to recoup his losses on the futures market. The result was that he lost that also. For practical purposes, his capital was all gone. His creditors had been demanding payment and were threatening to take possession of his family home, a flat which he had bought on mortgage, repaying at the rate of a little over $2,000 a month. There is no dispute that at the time of the offence, and for some months prior to it he had been suffering from psychiatric illness, a psychosis reactive depression. He felt that he had wronged and ruined his family. He decided on suicide. A few times prior to the instant offence, he took steps to implement that decision but he drew back at the last moment, as he said himself out of his timidity. He told his wife all these matters, the financial circumstances and how he felt that there was no future and that he had tried suicide a number of times, she took a more optimistic view of the prospects for the family than he did. He suggested to her that they jointly commit suicide and she told him not to be so foolish. Apparently she did not take his threat very seriously. He decided that the situation was, hopeless and that the only remedy was suicide. Further he thought that it would be a kindness to his wife to put her out of what he perceived to be her misery.

2. The wife was awakened from her sleep by the Applicant attacking her Apparently he struck her a glancing and not very powerful blow with a dumbbell. He then attacked her with a chopper She caught his hands, struggled and she shouted for help. The son appeared. The Applicant desisted, put down the weapon, and he then helped to bandage his wife's injuries which were three slight lacerations to the head, neck and hand. She was treated in hospital and discharges. There is no permanent disability.

3. It appears that though the Applicant had the intent called for by the offence, his attack was half-hearted and that it was certainly not pressed home. It also appears that it was followed by genuine not feigned remorse. The shouting had alerted the neighbours and the police arrived. The Defendant started walking out of the flat, past the police, who asked him where he was going. He said he was going to kill himself.  He was taken into custody, and has been in custody ever since. That is, he has been in custody for a period of eight months. From the beginning, he has admitted the offence. His wife has been supportive throughout, and has been visiting him in remand, frequently. She wishes him to come home. He had been employed for 20 years with China Light and Power and his immediate superior in that company was called as a witness in mitigation. The Applicant had joined as a junior clerk and he was a conscientious, hard corker, always punctual, and had rapid promotion to the post of district supervisor, earning a salary of some $8,000 a month. As I have said, he resigned of his own accord in order to obtain his provident fund, to try to recoup the family's losses.

4. Having lost all, he then took a job at $2,000 a month. Over the period of his employment with China Light and Power, he had attended extra mural courses at the Hong Kong University on two or three different occasions in an attempt to better himself. He has a clear record. It appears that prior to his depressive illness, he was a quiet, timid and emotionally stable family man. He was a good worker and provider, a social drinker and a non-gambler.

5. The incident the subject matter of this charge was out of character. We had a happy marriage with, as I have said, a 10 year-old son. When the illness began to set in he had bouts of sleeplessness, crying, suicidalideas, feelings of inadequacy, and he perceived the future as hopeless.

6. Since the offence he had received psychiatric and social counselling, and realizes the outlook is not as bad as he had thought. He appears to have pulled out of his depression. He is not considered dangerous or likely to repeat such an incident. No treatment is required but I understand counselling is continuing. If the wife had died, it is likely that the verdict would have been manslaughter due to diminished responsibility. This is a case where personal deterrence is not required. He himself does not require to be deterred. Of course, general deterrence is a matter for consideration. However, he does not appear to be a suitable vehicle for general deterrence, in the light of all the circumstances of the offence, and his personal circumstances. In this case, it would be consistent with public policy that he be returned to his family. He has been in custody for a period of 8 months, an equivalent of a 12 months sentence less remission and we simply order his immediate release and in place of the prison sentence we propose to make a 12 months probation order with a condition that he attends such counselling as the probation officer may recommend. He will nor, be asked whether he agrees to the terms of the probation order.

(Probation order made in the terms proposed)

Representation:

Mr. C. Coghlan, Senior Crown Counsel, for the Crown

Mr. Nigel Aiken (D.L.A.) assigned for the Applicant