Secretary for Justice v. Liu Chi Yung

CAAR 3/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 3 OF 2006

(ON APPEAL FROM HCCC NO. 278 OF 2005)

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BETWEEN

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Before : Hon Ma CJHC, Stock JA & McMahon J in Court

Date of Hearing: 10 January 2007

Date of Judgment: 10 January 2007

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J U D G M E N T

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Hon Ma CJHC (giving the judgment of the Court) :

1.On 20 March 2006, the Respondent pleaded guilty in the Court of First Instance to two charges : - one count of possession of an offensive weapon (an 8 inch fruit knife) in a public place contrary to section 33(1) of the Public Order Ordinance, Cap.245 and one count of wounding with intent to resist or prevent his lawful apprehension contrary to section 17(a) of the Offences against the Person Ordinance, Cap.212.  On 11 April 2006, Pang J sentenced the Respondent to terms of imprisonment of 8 months for the first offence and 6 years’ imprisonment for the second, both sentences to run concurrently.  It is clear in view of the guilty plea that the Judge had taken starting points of 12 months and 9 years respectively for the offences.  Having obtained leave, the Secretary for Justice now applies for a review of the overall sentence of 6 years on the basis that it is manifestly inadequate or wrong in principle.

2.The offences related to the events of the morning of 19 July 2005 when the Respondent stabbed a police officer, PC Chu Chun Kwok, in the left side of the neck with a knife.  At 8:30 am that day, PC Chu was patrolling Po On Road in Cheung Sha Wan when he stopped the Respondent outside the Po On Municipal Market.  The Respondent was asked to produce his identity card and while PC Chu was examining it, the Respondent suddenly took out an 8 inch fruit knife from his right trouser pocket and stabbed the police officer in the neck.  He immediately ran away.  PC Chu tried to give chase and both men were seen to be running in the direction of Wing Lung Street.  As PC Chu was running, he covered his neck with his hands and shouted at the Respondent to stop.  He could not catch up with the Respondent and eventually collapsed, his neck bleeding.

3.PC Chu was taken to the Caritas Medical Centre where he arrived in a state of shock and with no recordable blood pressure.  An emergency operation was performed as his left common carotid artery had been cut.  The stab wound extended from the left side of his neck to the vertebral body.  After surgery, he was diagnosed as having suffered severe brain damage.  Since the stabbing, PC Chu has had to undergo constant and extensive medical treatment.  He is severely disabled and is totally dependent, unable to look after himself.  Since September last year, he has been hospitalized in a Guangzhou hospital.  The latest medical report dated 5 January 2007 states that the brain damage has rendered him in a near vegetative state.  The diagnosis is blunt (as translated) “Further recuperation is not optimistic”.  He is conscious of what goes on : he reacts to sound and tactile stimulation, cries and smiles on occasion.  Now aged 33, in practical terms he is totally disabled.  He can be said to be lucky (if that is the right term) not to have lost his life.

4.And what of the Respondent?  We have five reports dealing with his psychological and psychiatric condition.  It cannot be disputed that he suffers from a severe personality disorder which is long standing.  In fact, the diagnosis is that he has what is known as an Avoidant Personality Disorder and a Schizoid Personality Disorder cannot be ruled out.  Since he was young (he is now aged 23), the Respondent has had difficulties in interpersonal relationships.  He has a fear of being socially inept and a preoccupation with any rejection, criticism or disapproval.  On the day in question, he had not eaten for a day.  He had spent the night before in a park.  He left home some weeks before after a domestic dispute and with what money he had, purchased the fruit knife.  He was looking for someone to rob with the knife when he was stopped by PC Chu.  The Respondent said he stabbed the police officer as he was afraid he would be found with the knife on him.

5.Although one psychologist has speculated that it was “possible” that the Respondent’s personality problems “may have an indirect relationship” with the offences with which the Respondent was charged, it has not been suggested that there was any excuse or justification for what happened to PC Chu, only perhaps that the train of events that led to this tragedy emanated from his domestic problems.

6.Nevertheless, it is to the Respondent’s credit that he has shown genuine remorse for the wounding of PC Chu.  Although he fled from the scene and his apprehension would only have been a matter of time (his identification card was left behind and there were witnesses), the Respondent gave himself up in the early afternoon the same day.  Thereafter, he cooperated with the police and as earlier indicated, pleaded guilty.  He continues to show remorse.  The Respondent also has a clear record.

7.However, in our view, the overall sentence of 6 years’ imprisonment imposed by the Judge was manifestly inadequate and this sentence should be reviewed and increased to one of 10 years’ imprisonment : -

(1) The appropriate starting point for the wounding charge is 15 years.  As Mr Zervos SC (for the Applicant) has reminded us this morning, there has to be sufficient account taken not only of the stabbing itself but also of the effect on the victim and the public interest in a deterrent sentence.  We feel that the Judge had not sufficiently taken these factors into consideration.  With a one-third discount for the plea of guilty, the appropriate sentence for this charge is 10 years’ imprisonment.

(2) We have already provided a summary of the injuries sustained by PC Chu.  They are nothing short of catastrophic.  A young and healthy man has had his life ruined by a vicious act of violence and this has led to him being in a vegetative state.  Little or no improvement is expected.

(3) The public interest in having an effective, responsible and brave police force cannot be over emphasized.  PC Chu was an exemplary officer having nearly lost his life in the course of duty.  It was sheer bravery to have given chase even after a near fatal wound to his neck.  Police officers who often face danger when on duty must be protected by the courts from attacks such as the present.  The use of violence against members of the police force especially when in the discharge of their duties simply cannot be tolerated and where this occurs, will inevitably attract heavy sentences.

(4) It is to be remembered that the maximum sentence under section 17(a) of the Offences against the Person Ordinance is life imprisonment.  While one can contemplate more serious situations of wounding, we think that the present case, even taking into account the fact that it was unpremeditated and probably done in a moment of panic, should properly attract a starting point of 15 years.  We note here that in HKSAR v Yuen Wai Kui, unreported, CACC 280/2004, 14 April 2005, it seems to be suggested in paragraph 21 of the judgment of this court that the range of sentences for “this kind of offence” was between 3 and 12 years.  Reference is made to Cross and Cheung : Sentencing in Hong Kong (see page 527).  Seen in isolation, this comment is apt to cause confusion.  The learned authors make it clear only that sentences of between 3 and 12 years are common but add as Fuad VP said in Attorney General v Lam Yat Sing, unreported, CAAR 14/1992, in a passage cited by Tang JA in Yuen Wai Kui that “everything will depend so heavily on the particular facts of each case”.  This must be the position and was the very point made in the decision of this court in HKSAR v Jiang Guohua, unreported, CACC 31/2005, 18 May 2005.

(5) We have earlier detailed the mitigating factors in favour of the Respondent, not least of all his genuine remorse and clear record.  However, with the one-third discount leading to a deduction of 5 years from the starting point of 15 years, we feel that no further discount is appropriate.

(6) Mr Zervos SC also submitted to us that it was wrong of the Judge to have made the sentence for the two charges concurrent.  They ought, he says, to have been made consecutive or at least partly so : - the knife was afterall purchased for the purposes of committing a robbery.  While we can see that in principle, concurrent sentences are only appropriate for offences that can properly be said to have been committed in the course of a single transaction (see Attorney General v Cheung Pit-yiu [1989] 2 HKLR 12), we are of the view that the totality principle does not require the sentences to be made consecutive in the present case.

8.Accordingly, for the above reasons, we accede to the application to review under section 81A of the Criminal Procedure Ordinance, Cap.221 and substitute the sentence of 10 years in place of the 6 year one.  The sentence of 8 months for the possession charge remains and this will be served concurrently with the 10 year sentence for the wounding.  Overall, the sentence is therefore 10 years’ imprisonment.

Mr Kevin P Zervos SC & Mr W T Chiu of the Department of Justice for the Applicant

Mr David Ma, instructed by Messrs To Lam & Co for the Respondent