HKSAR v. Yu Koon Mam

CACC 253/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 253 OF 2007

(ON APPEAL FROM DCCC No. 215 of 2007)

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Date of Hearing:   28 February 2008

Date of Judgment:  28 February 2008

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J U D G M E N T

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Hon Yeung JA (giving the judgment of the Court):

Background

1.The applicant, Yu Koon Man, met the victim in Shenzhen where she was working.They developed a relationship, leading to the birth of a son in 2001 before they got married.

2.The applicant then returned to Hong Kong and worked as a construction site worker to support the victim and their son, who lived in Shenzhen. They visited each other regularly.

3.In September 2006, the victim and the son joined the applicant in Hong Kong and their relationship became stormy. In January 2007, the victim moved out of the matrimonial home due to violence committed by the applicant against her, and started to live in a shelter home provided by the Social Welfare Department.

4.In the evening on 11 February 2007, the victim returned to the matrimonial home to visit the son and to collect some personal belongings. There was then a heated argument, and the applicant suddenly fetched a cutter blade to attack the victim. The applicant grabbed her hair and slashed her face a few time with the cutter blade before his elder brother successfully intervened.

5.The victim, having sustained three lacerations to her face measuring 7 cm, 2 cm and 2 cm respectively that required 27 stitches, was admitted into hospital, albeit for just one day.

6.After his arrest, the applicant made a full confession although he claimed not to be sure how he had come to slash the victim’s face.

7.On 16 July 2007, the applicant appeared before Deputy Judge Johnny Chan in the District Court and pleaded guilty to a charge of wounding with intent.

8.The judge adopted a starting point of 5 years’ imprisonment. Additional to the one-third discount for the guilty plea, the judge reduced the sentence by a further 4 months to 3 years’ imprisonment “for the combined provocation of the angry words and the victim’s engagement in the sex trade”

9.It was the defence’s mitigation, which was accepted by the judge, that the victim, perhaps disillusioned at the applicant’s lack of wealth, started to work as a hostess in a nightclub and the applicant found it necessary to cease work and rely on social security of just over $4,000.00 a month in order to take care of the infant son.

10.On the 11 February 2007 when the victim returned to the matrimonial home, the applicant pressured her to come home and there was an exchange of unpleasant words. The victim said she would not suffer poverty anymore and even if she were to return home, she would still leave if she were to meet someone “better”.

11.The suggestion was that the applicant was so provoked by what the victim said that he lost his sense and fetched a cutter blade to injure the victim.

12.The applicant claimed to be remorseful of what he did and emphasized that he had pleaded guilty to the charge.

13.The applicant had nine criminal convictions. In 1988, the applicant was convicted of common assault and in January 2007 he was bound over for 12 months for assaulting the victim.

The Judge’s Approach

14.The judge took the view that each case depended on its particular facts, although public interest demanded a deterrent sentence.

15.The judge observed that cases involving domestic violence had increased and that the applicant had, shortly before the offence in question, been bound over for assaulting the victim.

16.The judge emphasized that the attack on the victim was vicious and intended to disfigure her. The judge looked at photographs of the victim and commented that the victim’s injuries were extremely serious, with a long U-shaped laceration wound on her face.

17.The judge took the view that a deterrent sentence was called for in order to discourage domestic violence.

18.The judge accepted that there was an element of provocation, but rejected the suggestion that the applicant was provoked to a material extent by his knowledge that the victim worked in the sex trade, as the applicant had a previous conviction for aiding and abetting the management of a vice establishment.

19.The judge further pointed out that when the applicant knew the victim in Shenzhen, she was already working as a prostitute and that prior to the wounding in question the applicant had known for some time that the victim was working as a prostitute in Hong Kong.

20.The judge referred to the 5 years’ imprisonment imposed on the defendant in HKSAR v Ling Man Foon (unreported, CACC 222/2004), a wounding case involving a jealous husband who wounded the victim because the victim was having dinner with his wife after they finished work.

21.The judge considered a similar starting point appropriate, but reduced the sentence to 3 years because of the guilty plea and other mitigating factors.

Grounds of Appeal

22.Mr Walter Lau, on behalf of the applicant, submits that the sentence on him is manifestly excessive. Mr Lau refers the court to a number of “similar’ cases and suggests that a starting point of 3 years would be adequate to reflect the gravity of the offence in question.

23.Mr Lau also submits a letter written by the applicant indicating that he is remorseful and hopes to be given a chance to reform himself and to establish a more useful life. The applicant says the victim would return the son to him upon his discharge from jail, and he hopes that the victim would be able to recover from her injuries and to start another more satisfactory marriage.

Discussion

24.Each case must be looked at on its own fact, an approach that neither counsel disagrees. A particular case may deserve greater degree of leniency because of the special mitigating factors and therefore may not be guidance of what should be a proper sentence in another case.

25.This case concerns a deliberate attack with a sharp instrument, a cutter blade, in order to disfigure a young woman. It is an extremely serious crime. The applicant achieved his purpose when his attack had left the victim with a long U-shaped laceration on her face.

26.The judge had looked at the victim’s photographs taken shortly after the attack and when the victim had recovered. The judge would no doubt be aware of the full extent and impact of such injuries.

27.We have also looked at those photographs and we must say we are appalled by the victim’s injuries as depicted in those photographs. It requires little imagination to appreciate the full impact and lingering effect of such injuries on a young woman such as the victim.

28.The applicant had many previous convictions, including a conviction for assault. What is more significant is the fact that a month prior to the present attack, the applicant had used violence on the same victim for which he was bound over, just about 3 weeks before he attacked the victim again.

29.The applicant is clearly a man of violent disposition. What the applicant did to the victim was vicious and we agree with the judge’s view that the offence called for a deterrent sentence.

30.We do not agree that the starting point of 5 years, in the light of the background of the case and that of the applicant, is manifestly excessive.

31.Indeed, the further discount of 4 months, on top of the 1/3 discount for the guilty plea indicates that the judge’s approach to the applicant’s case was a lenient one, as we do not agree that there was any serious provocation as suggested by the defence.

Conclusion

32.We are not persuaded that the sentence of 3 years’ imprisonment is wrong in principle or manifestly excessive. The application for leave to appeal against sentence is therefore dismissed.

Mr Tam Sze-lok, SGC of the Department of Justice for the Respondent.

Mr Walter Lau instructed by Messrs Leung, Chan & Pang in lieu of Director of Legal Aid for the Applicant.