HKSAR v. Lau Yuk Huen
Read the full judgment text of CACC 37/2008 on BabelCite. This Court of Appeal judgment was delivered on 5 June 2008 before Hon Tang VP and Burrell J.
Criminal law – wounding with intent – domestic violence – appeal against sentence – provocation – age – starting point – guilty plea discount – HKSAR v Fan Tak-wan – HKSAR v Yu Koon-mam – sentence of 36 months not manifestly excessive – appeal dismissed.
Legal issues: Appeal against sentence for wounding with intent
Outcome: Appeal against sentence dismissed.
Cited by 13 cases · Cites 2 cases
|
CACC 37/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 37 OF 2008 (ON APPEAL FROM DCCC NO. 688 OF 2007) ______________ BETWEEN
______________ Before: Hon Tang VP and Burrell J in Court Date of Hearing: 5 June 2008 Date of Judgment: 5 June 2008 _______________ J U D G M E N T _______________ Hon Tang VP: 1.The appellant was convicted on his own plea of one count of wounding with intent. The victim was his wife. At the time of the offence, they were residing together in the Wan Tau Tong Estate in Tai Po. Their two daughters moved out in 2005. According to the Amended Summary of Facts, the victim and the appellant had been living together “under a tense relationship and an unpleasant atmosphere”. 2.The events which led to the charge can be stated briefly. In the afternoon of 24 June 2007, the victim accused the appellant of stealing about $20,000 which she had kept in the matrimonial home. The appellant denied the accusation and asked the victim to report the matter to the police, but she refused to do so. The victim then told her daughters. They urged the victim to search the premises because of her poor memory. She did not do so. The victim kept nagging at the appellant, and accused him of the theft of her money through the entire evening of 24 June 2007 and the morning on the following day. In the morning of 25 June 2007, the appellant telephoned one of his daughters and complained to her about the false accusation by the victim. Upon hearing the complaint made by the appellant, the victim snatched the phone from the appellant and complained to the daughter that the appellant had stolen her money. The appellant became very angry. He then went into the kitchen and sharpened a chopper with a grindstone. 3.Later, the appellant received a phone call from his own mother. The appellant answered the phone when he was holding the chopper in one hand. Whilst he was talking to his mother on the phone, the victim shouted loudly accusing the appellant of stealing her money. The appellant hung up. He then chopped the victim with the chopper at her head, neck and left face. The victim tried to ward off the chopper with her hands and as a result, she sustained further injures. 4.Because of the commotion, the neighbours came, and eventually helped the victim out of the flat. 5.She was sent to the Prince of Wales Hospital where she was hospitalized for two weeks. 6.According to the medical report, she was admitted with open wound on her left cheek, scalp, back and both hands.
7.When questioned by the police, the appellant fully admitted that he chopped the victim because he was angry with her for falsely accusing him of stealing her money. 8.On such evidence, Deputy District Judge Thomas adopted a starting point of 4½ years and he gave the appellant the full discount of one-third for his plea, and sentenced him to imprisonment for 36 months. 9.The appellant has told us that he attacked the victim under extreme provocation. He said that she was partly responsible for the incident which ended in tragedy. It is accepted that the victim’s accusation was unfounded. The appellant and the victim had been married for 30 years. They are now divorced. He has apologised to the victim. The appellant was 66 years old at the time of the offence. 10.But the court takes a very serious view of domestic violence. 11.Mr Lai, counsel for the respondent, has referred us to HKSAR v Fan Tak-wan, CACC 10/2007, unreported, dated 4 October 2007. There, Lunn J, giving the judgment of the court, upheld a sentence of 4 years where a husband had pleaded guilty to wounding with intent of his wife of 14 years, who was the mother of his two sons. There the applicant had also used a kitchen knife to deliver multiple blows to the victim’s head, face, hands and right arm. The blows to her hands and right arm were caused as she tried to fend off the attack. There the injuries were more serious. She was admitted into hospital and found to have multiple chop wounds over her head, face and deep chop wounds over both hands with the bone and tendon exposed. The tip of the right finger had been amputated. The injuries to her right hand involved muscles and tendons of the ring and little finger with some digital nerve involvement. The injuries to the left hand involved tendon, nerve and artery damage. Notwithstanding the attack, the victim would not give evidence against the applicant who nevertheless pleaded guilty in the Magistrates’ Court and was committed for sentence to the Court of First Instance. There, according to the latest medical report on the victim she had largely recovered function in range and power of the left hand, although there was remaining stiffness and loss of sensation in the right hand. There was a statement given by her to show that she claimed that she had made a full physical and mental recovery. 12.It is to be noted that in that case, the applicant was sentenced to imprisonment of 4 years as compared with 3 years in our present case. 13.We were also referred to HKSAR v Yu Koon-mam, CACC 253/2007, unreported, dated 28 February 2008. 14.That was a very bad case of domestic violence. There the applicant used a cutter blade to attack the victim, slashed her face a few times with the cutter blade before his elder brother successfully intervened. The victim sustained three lacerations to her face, measuring 7 cm, 2 cm and 2 cm respectively. They required a total of 27 stitches. 15.In the District Court, the Deputy District Judge adopted a starting point of 5 years. In addition to the one-third discount for the guilty plea, he further reduced the sentence by 4 months to 3 years’ imprisonment “for the combined provocation of the angry words and the victim’s engagement in the sex trade”. 16.The application for leave was dismissed. As the court there noted, they were concerned with a deliberate attack with a sharp instrument in order to disfigure a young woman. It was an extremely serious crime. The applicant achieved his purpose when his attack left the victim with a long U-shape laceration on her face. Moreover, that was not the first time he had used violence on the same victim. A month prior to the attack, he had used violence on the same victim for which he was bound over. The sentence of 3 years was regarded by the court as a lenient one. For myself, I would regard the sentence as woefully inadequate, and the sentence should not be regarded as a guide for future cases. 17.I return to the facts of the present case. According to the respondent, the victim has not fully recovered. According to her, the movement of her hands are now very much restricted. She is still receiving physiotherapy and seeing a physiotherapist and occupational therapist on a regular basis for rehabilitation. According to her, she cannot hold anything which weights more than ½ kilogramme, so that she has difficulty bringing her grocery home and her daily life is very much affected. The cut wound to her back is still causing her pain and that is being followed up on a regular basis. 18.The only point which concerned me about the present case which caused me to grant leave to appeal is the fact that the appellant is 66 years old. In a suitable case, for humanitarian reasons, old age and poor heath could result in a reduction of sentence. But the appellant although 66 years old, cannot be regarded as old. And there is no evidence he is in particular poor health. It is true that the appellant had been seriously provoked by the victim, and that the risk of any recurrence is small. But it was a vicious attack. It is also important that no one should think that if he has been provoked the court would give him a lenient sentence. Domestic violence must be stopped. On the facts of this case, I cannot say that the sentence of 3 years is manifestly excessive. 19.For these reasons, I will dismiss the appeal against sentence. Hon Burrell J: 20.I agree.
Mr. Ned Lai, SGC, of the Department of Justice, for the Respondent. The Appellant, in person, present. |
Cases cited in this judgment
Other judgments that cite this case