HKSAR v. Chan Kwok Tai

CACC000057/2002

CACC 57/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 57 OF 2002

(ON APPEAL FROM DCCC 851 OF 2001)

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Coram: Hon Stuart-Moore VP and Gall J

Date of Hearing: 18 October 2002

Date of Judgment: 18 October 2002

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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):

Introduction

1.On 22 January 2002, the Applicant pleaded guilty in the District Court before Deputy Judge Mierzack to a charge of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212. The particulars of the charge stated that the Applicant, on 14 August 2001, at a named company's premises in Fashion Plaza in Mongkok, unlawfully and maliciously wounded Chow Pui-yee (the victim) with intent.

2.The Applicant, then aged 25, was sentenced to three years and eight months' imprisonment against which he now seeks leave to appeal.

The facts

3.The facts in support of the charge showed that the Applicant and the victim were both colleagues working at an internet bar in Mongkok. The victim was employed as a cashier. At about 6.30 a.m. on 14 August 2001, the Applicant approached the victim at the cashier's counter where she was working and requested to talk to her. She was busy and asked the Applicant to wait until she had finished her work.

4.About half an hour later, the victim met the Applicant. The Applicant asked her if his girlfriend had telephoned him at work between midnight and 2.00 a.m. The victim said that she had answered telephone calls from his girlfriend on seven or eight occasions but she had not known the whereabouts of the Applicant.

5.The Applicant told the victim that as his girlfriend had been unable to locate him, they had subsequently had a heated quarrel. The Applicant blamed the victim for this. The victim told him she would explain the matter to his girlfriend who happened also to be known to her.

6.Suddenly, the Applicant attacked the victim with a knife measuring 46 centimetres in length. He chopped her in the region of her shoulder and head. As she was escaping, he chased her and chopped her again, this time on her back.

7.There were other persons present at the snack bar and the Applicant was intercepted. He told police later that because the victim had said something bad about him to his girlfriend, he had chopped her.

8.The victim was taken to hospital where her injuries were treated. Two medical reports were exhibited and, in brief, she was found to have suffered three wounds measuring 8 centimetres in length which were, respectively, on the scalp, the right scapula deep to the back muscles and over the right shoulder with a fracture of the right clavicle. In addition, there were two wounds near the spine on the right scapula and three superficial lacerations over the right side of the chest wall.

9.The victim was discharged on 17 August 2001 having been hospitalised for three days. By this time, her wounds had healed and she required no further treatment. To all intents and purposes, therefore, the victim appeared to have made a complete recovery.

Mitigation and sentencing

10.In mitigation, it was submitted that the Applicant had acted out of impulse. He had consumed some alcohol but he had known what he was doing. He had pleaded guilty and shown genuine remorse, he was willing to offer compensation to the victim and he had lost his job as a result of the incident. It was submitted that the only reason for the attack was that the Applicant had believed that something detrimental about him had been said by the victim to his girlfriend.

11.One matter which was not in the Applicant's favour was that the last of his three previous convictions related to two robberies for which he had received a sentence of two and a half years' imprisonment. In the light of all these factors, the judge took a starting point of five and a half years' imprisonment and reduced this to three years and eight months' imprisonment to give full credit for the Applicant's plea of guilty.

The application

12.In submitting that the sentence was manifestly excessive, Mr Hanif Mohamed Mughal, on behalf of the Applicant, sought to place considerable reliance upon similar cases, and others more serious, which have come before this court. Whilst we are grateful to Mr Mughal for the research he has conducted into other cases, we have to say, as we have so often had occasion to say in the past, that this form of comparative study has, necessarily, very limited value. We are only concerned with this case and the facts on which the Applicant was sentenced.

13.This was, as the judge pointed out in his sentencing remarks, a serious attack and his reasons for this conclusion were expressed in these terms:

"The defendant not only struck PW1 on the left (sic) shoulder and head and caused injuries but when PW1 was escaping, her back was again chopped by the defendant, that is, the defendant armed with the knife was chasing after PW1. The only reason given for the cowardly and callous attack was that the defendant believed that something detrimental had been said by her, PW1, about him to his previous girlfriend, and no other reason. Here, the victim was an unarmed female and she really did nothing to provoke the attack. She could not defend herself and fled and, fortunately, persons came to her aid and the defendant was intercepted.

10. The injuries occasioned to PW1 were very serious as the medical reports clearly set out and it is indeed fortuitous that the injuries have healed and no further follow-up is required. There appear to be no permanent injuries. It is sheer good fortune that more serious injuries were not occasioned. As it is, she spent three days in hospital.

11. As I say, I have been shown this knife which can more correctly be referred to as a chopper. It is formidable weapon, to say the least, measuring some 46 centimetres. This must have been a horrifying experience and, as I repeat, it is a callous and cowardly act on an unarmed woman who is not in a position to defend herself. This sort of vicious and deplorable attack must warrant a deterrent sentence." (Appeal bundle p. 6)

14.We feel bound to agree with these sentiments and even Mr Mughal was left at the end of his written submission stating that "arguably the term imposed could have been shaved off by a few more months". This amply demonstrates that even in Mr Mughal's mind this sentence was not manifestly excessive. Whether or not we are correct in saying this, it is our view that the sentence was an appropriate one.

Conclusion

15.The application is dismissed.

Representation:

Mr P.K. Madigan, of the Department of Justice, for the Respondent.

Mr Hanif Mohamed Mughal, instructed by Director of Legal Aid, for the Applicant.