Secretary for Justice v. Hau Ping Chuen

CAAR 12/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 12 OF 2007

(ON APPEAL FROM DCCC NO. 715 of 2007)

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BETWEEN

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Before: Hon MA CJHC, Stuart-Moore VP and Stock JA

Dates of Hearing: 18 March 2008

Date of Judgment: 26 March 2008

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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):

1.On 9 November 2007, Hau Ping-chuen (the respondent) pleaded guilty in the District Court before Judge Chua to a charge of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212.  The particulars of this charge were that the respondent:

“… on the 25^th day of June 2007, outside No. 87B, Ping Kong Village, Sheung Shui, New Territories, in Hong Kong, unlawfully and maliciously wounded Hau Kin Chai, with intent to do him grievous bodily harm.”

He was sentenced on the same date to 14 months’ imprisonment.

2.The Secretary for Justice (the applicant) was granted leave on 11 December 2007 by the Chief Judge of the High Court to apply to the Court of Appeal for the respondent’s sentence to be reviewed pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221.  A letter, dated 4 December 2007, which accompanied the court records, acknowledged that an error had occurred in sentencing.  This read:

“When the judge corrected the transcript, she realised she had made a miscalculation.  The sentence with discount should be 16 months.  Be that as it may, whether the sentence is adequate, she is functus and cannot correct the mistake.”

However, this application, whilst incorporating the element of miscalculation, is mainly directed at what was said to be the inadequacy of the sentence in its overall effect.

The facts

3.The factual basis for the respondent’s plea of guilty was reasonably straightforward.

4.Hau Kin-chai (the victim) and the respondent belonged to an indigenous clan at Ping Kong Village, Sheung Shui.  On 24 June 2007, an evening meeting was held amongst the indigenous villagers.  The victim, who was the resident village representative, and another representative (PW3), chaired the meeting.  The respondent did not attend this meeting although his brother did.  The victim proposed a new practice of allocating the limited number of invitation cards among villagers to attend banquet dinners held jointly with four other clans.  The proposal was supported by all the Ping Kong Village residents except the respondent and his family.  One of the results of this proposal was that the respondent’s family would no longer be invited automatically to banquets as they had been in the past.

5.It seems, from what the judge was told later in mitigation, that there was also a financial interest for those who attended these banquets and a by-product of this new arrangement would have been that the respondent would lose this advantage.  In any event, after the meeting, the respondent and his brother separately telephoned PW3 to complain about the new arrangement but to no avail.

6.During the early hours of 25 June 2007, the victim went to meet his nephew (PW2) whose house was nearby.  As he walked out of his house, he saw the respondent standing to his left.  The respondent yelled at him, asking why his invitation had been cancelled.  The victim replied that it was a resolution passed at the meeting and not his responsibility.  The respondent then took out a knife with a 5½-inch blade and attempted to stab the victim.  The victim managed to fend off two of the stabbing motions with his arms but he was cut by the knife on his abdomen.  As the victim slipped, the respondent continued to stab at him.  The victim cried for help and alerted PW2.  When PW2 rushed out of his house, he saw the respondent stabbing the victim’s left inner thigh.  The victim ran away but the respondent continued to attempt to stab at the victim until PW2 yelled: “What are you doing?”.  It was only then that the respondent stopped and ran off towards his own house.

7.The police were summoned to the scene and the victim was taken to hospital.  The respondent then surrendered himself to the police.  He admitted having stabbed the victim with a knife and claimed that he had been forced to act in this way because of what the victim had done.  He told the police where he had discarded the knife and, in due course, this knife, measuring 11 inches altogether, was found on the path leading to the respondent’s house.

8.The victim sustained a 5 centimetre cut wound over the abdomen and a 5 centimetre cut wound on his left groin.  He was hospitalised for three days.  He has fortunately suffered no long-term ill effects.

Sentencing

9.Having described the factual background, the judge referred to the respondent’s two previous convictions.  The earliest of these was a long time ago but the other related to offences of criminal intimidation and criminal damage for which, respectively, he received a 4-month suspended sentence and a fine on 7 October 2000 at Fanling Magistrates’ Court.

10.In her sentencing remarks, the judge said that the respondent ought to have sought a “declaration in court” rather than attacking the victim and she indicated, rightly, that an immediate custodial sentence was inevitable.  The judge then adopted a starting point of 27 months, adding that the respondent was:

“… entitled to a third discount for his plea which brings the sentence down to 16 months”. 

It was obviously these words which were referred to in the letter accompanying the case papers as having been a ‘miscalculation’.

11.The judge continued:

“18.   To his credit, the defendant surrendered himself when the police arrived at the village to investigate.  He also led the police to the pond where he had thrown the knife, and that knife has been retrieved.  I am going to give him one and a half month’s discount for that act.

19.     There has been an offer as well, of compensation for $20,000, if I thought it appropriate.  I am sure this was intended with good heart and not intended to buy his way out of a custodial sentence.  Taking it on that basis, I give him another half a month discount.  However, I do not think in this case, compensation is appropriate.”

12.The additional discount of 2 months for the respondent’s “cooperation” at the scene of the crime and for his “offer of compensation” were, with respect, given contrary to normal sentencing practice and were inappropriate in the circumstances.  The surrender of the respondent to the police when they arrived and the recovery of the knife as a result of the respondent’s so-called cooperation mattered very little in the circumstances as this amounted to no more than a confession at the scene of the crime.  Furthermore, a simple offer to make a payment by way of compensation is not a proper basis for reducing sentence and in this case, when the judge had found that it would not be right to make such an award, this was clearly inappropriate.  The one-third discount for the respondent’s guilty plea covered the full extent of the discount he should have received.

Discussion

13.As we have already indicated, the principal issue on which we have had to focus is whether the starting point of 27 months was, as Mr Cross SC on behalf of the applicant submitted, manifestly inadequate quite apart from the sentence also being “wrong in calculation”.

14.In the course of argument, Mr Cross pointed to the fact that this was an armed attack at night on a defenceless victim.  The respondent had made several attempts to stab the victim apart from the two blows which had caused the wounds in the region of the victim’s abdomen and groin.  It was submitted that it was a matter of pure chance that more serious harm had not resulted from this attack.

15.Mr Cross referred us to the decision in HKSAR v Tse Hok-lam [2005] HKLRD (Yrbk) 344, where the usual range of sentence for wounding with intent is described as being “3 to 12 years’ imprisonment”.  In that case, where a female victim had been attacked with a knife in the back and with a chopper on her neck and shoulders, this court reduced a starting point of 12 years to 9 years and imposed a 6-year sentence to reflect the appellant’s guilty plea having regard to the victim’s complete recovery.  We note that the court, in coming to its decision, made specific reference to the unusually low intelligence quotient of the appellant, a factor that may, in part, account for the reduction in the light of what was a vicious attack.

16.Of course, this is not to say that there may not be offences contrary to section 17(a) of the Offences Against the Person Ordinance which call for higher or lower sentences than the usual range described in Tse Hok-lam if the circumstances are so unusual that they merit sentences above or below the usual bracket.  Indeed, Mr Blanchflower SC, on the respondent’s behalf, particularly relied on two cases which seemed to provide exceptions to the general rule that a section 17(a) wounding offence would normally carry a minimum of 3 years’ imprisonment.

17.Firstly, Mr Blanchflower referred us to the decision in R v Tsui Mei-ying [2002] 4 HKC 689.  Despite its belated entry in the law reports, it is to be noted that this was a case which came before this court over twenty years ago, on 21 October 1987.  Since then, it might be said that the attitude of the courts towards offences of violence has changed with the result that they are now dealt with more severely.  In Tsui Mei-ying’s case, the appellant had cut off her husband’s penis while he was asleep, following her accusations about his matrimonial misconduct.  There was an added special feature in that case as medical evidence suggested that the appellant had been suffering from a depressive reaction to her marital problem.  A sentence of 4½ years’ imprisonment was imposed following her plea of guilty.  This was reduced to 2 years’ imprisonment by the Court of Appeal for a variety of factors, not least that the matrimonial misconduct which precipitated the offence was spread over a long time, that the victim had forgiven the appellant and was “keen for a reconciliation which [would] reunite the family”, that the offence immediately followed the day on which a private investigator had informed the appellant that her husband was going out with a young woman and that the appellant was suffering from severe depression.  The facts were so different to the present case that we have derived no benefit from that decision.

18.Our attention was then drawn to HKSAR v Yuen Wai-kui, CACC 280/2004, which was a case where the victim, having struck the first blow and having chased after the appellant was then set on by the appellant who stamped on him in a way which far exceeded lawful self-defence and left the victim in a “vegetative state”.  The victim owed what, to the appellant, amounted to a substantial sum of money and the appellant had then been provoked by the victim.

19.On the face of it, the starting point of 7½ years’ imprisonment adopted by the Court of Appeal in that case (exactly half the starting point taken by the sentencing judge), which was then reduced to 5 years’ imprisonment to reflect the guilty plea, might be thought to be remarkably low, given the sustained attack on the victim and the horrific consequences occasioned to him.  This said, it is clear that the court was significantly influenced by a number of highly individualized mitigating circumstances.  The appellant was a man in his mid-40s who, unlike the present respondent, was of previously impeccable character.  He had also undergone chemotherapy for cancer and was fearful of a relapse.  Unlike the present case, he carried with him no weaponry at the time of the incident which had flared up suddenly and was, therefore, accompanied by no premeditation.  It had begun with an attack upon the appellant by the victim who had not only struck the first blow but had also chased the appellant.  Furthermore, the court noted that the appellant was at the time of the incident the main support of his family, was owed a substantial sum of money by the victim, and was under significant stress.  He was at all times fully cooperative.  The case is one of a host of wounding with intent decisions which might be used in favour of a lenient view whereas others favour a stricter view.  At the end of the day, a sentencing court obtains a ‘feel’ for the appropriate result by regard to the attitude of courts over a period of time to a great variety of circumstances and we do not think that Yuen Wai-kui provides any particular guide to the case at hand.

20.Mr Blanchflower also submitted that it was important in these proceedings to ensure that everything which might be said on the respondent’s behalf had been taken into account.  He laid some emphasis on the “provocative nature of the victim’s proposal which resulted in the respondent and his family losing out on [a share of] the profits of the clan’s business”.  It was not a simple matter of the respondent not being invited to banquets in the future.  In our opinion, the attack on the victim could just as well be described as a revenge attack as one which had arisen from any perceived provocation.  Whichever description is more apt, it is clear that the respondent felt aggrieved at what had occurred but his response was out of all proportion to his grievance.  By taking the law into his own hands in this way, the respondent reacted in an extremely dangerous manner, using a knife which was both large and sharp.

21.Having regard to all the factors which have been brought to our attention, including a letter written by the respondent’s son, we have concluded that the least starting point which could be imposed for an offence as serious as this is 5 years.  To give effect to the respondent’s guilty plea, this must be reduced to 3 years and 4 months’ imprisonment.  From this, it will be apparent that we consider the sentence of 14 months imposed in the court below was manifestly inadequate.

22.We understand that the respondent’s earliest release date is 4 April 2008 and, bearing in mind the nature of these proceedings, we consider that there should be a further reduction of 6 months to take this factor into account.

Conclusion

23.Accordingly, we shall allow this application.  The sentence of 14 months’ imprisonment imposed in the court below is quashed and in substitution, pursuant to section 81B of the Criminal Procedure Ordinance, we impose a sentence of 2 years and 10 months’ imprisonment.

Mr I Grenville Cross, SC, DPP and Ms Olivia Tsang, SGC (Ag), of the Department of Justice, for the Applicant.

Mr M C Blanchflower, SC and Mr Bernard Yuen, instructed by Messrs Ivan Tang & Co., for the Respondent.