Secretary for Justice v. Lui Jiu

[English Translation – 英譯本]

CAAR 6/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 6 OF 1999

(ON APPEAL FROM HCCC NO. 177 OF 1999)

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Before: Hon Chan CJHC, Wong JA, Yam J

Date of Hearing: 14 December 1999

Date of Judgment: 14 December 1999

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JUDGMENT

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

1. The Respondent Lui Jiu pleaded guilty before Deputy Judge Li of the Court of First Instance to one count of wounding with intent, contrary to Section 11 of the Offences against the Person Ordinance (Cap. 212).  The learned Judge sentenced the Respondent to imprisonment for 16 months.  The Secretary now applies to this Court for review of sentence, pursuant to Section 81A of the Criminal Procedure Ordinance (Cap. 221), on the ground that the sentence is manifestly inadequate and wrong in principle.

2. The Respondent and the victim were husband and wife, and they had three children.  The Respondent worked at a hotel as a cleaning worker, and he worked on the night shift, with working hours from 10 p.m. to 7 a.m.  The victim was also a part-time cleaning worker, but with no fixed working hours.  Prior to the incident that gave rise to the charge against the Respondent, problems already existed between the Respondent and the victim, and the latter had suggested a divorce and made an application to the court accordingly.  At about 7 a.m. on the day of the offence, the Respondent returned home from work.  At that time, the victim was inside the kitchen.  Suddenly the Respondent, using a paper cutter, attacked the victim from behind on the back of her head and her neck.  As the victim covered her head with her right hand, her right wrist was also injured.  During the attack, the Respondent said to the victim, “I will chop you to death”, and the victim screamed for help, which alerted their children.  The Respondent immediately threw the paper cutter aside and left the scene.  Not long thereafter, the Respondent surrendered himself to the police.  He admitted injuring the victim with a knife and said he did so because the victim was asking for a divorce and half of the interest over the property in which they cohabited.

3. The victim sustained serious injuries, including a 10 cm wound to the left of the occipital, a 12 cm wound at the back of the neck, a deep laceration on the right wrist, and multiple cut wounds on the left thumb and index finger.  Medical examination confirmed that the victim’s right hand had been broken and that, apart from laceration of the fingers, there was also a relatively deep laceration at the back of the neck.  The victim’s right hand received fixation treatment but can only perform 10 to 20% of its normal functionality, and there may or may not be improvement, depending on the results of physiotherapy.

4. The Respondent is now aged 54 (it has been said he is in fact above 60 years old).  He has a clear record and a stable occupation.  The reports of a probation officer and a psychologist reveal that the Respondent’s act of injuring the victim stemmed from a domestic dispute.  He suspected the victim of infidelity and she was applying for divorce and claiming a share of the property.

5. In passing sentence, the learned Judge made reference to case law and adopted a starting point of 4 years.  A one-third discount was given by reason of the Respondent’s guilty plea, and a further one-third discount was given on account of his age and clear record.  Hence the net sentence was of 16 months.  The Secretary for Justice contends that the starting point of 4 years is inappropriate and that the Judge was being too lenient in giving what added up to a two-third discount.

6. In my view, wounding with intent is a very serious offence, and wounding with intent in the context of a family dispute is nothing short of a tragedy.  From an emotional perspective, a seriously wrong act that resulted from distress over relationship problems may well attract sympathy.  However, this type of offence, just like wounding under other circumstances, is capable of inflicting injuries on the victim, ranging from bodily harm to disability.  Imposing a lenient sentence on those who commit the offence against the background of a family dispute will convey a wrong message that such offence is condoned by the court, thereby indirectly encouraging domestic violence and impulsive behaviour by a disgruntled spouse.

7. The Respondent in the present case assaulted the victim from behind, injuring the back of her head and the neck with a knife.  It was all so sudden that the victim could not possibly protect herself.  She covered her head with her right hand, which was then mutilated.  On the facts, the Respondent deliberately injured the victim and each blow could have been fatal, as if the Respondent had set out to kill the victim.  Although he met with emotional frustration and was distressed, he was not infuriated or provoked into committing the offence.

8. As far as sentencing is concerned, the circumstances in which the offence of wounding with intent was committed, and the seriousness thereof, can differ very widely between every two cases.  Therefore, the Court of Appeal has neither laid down any sentencing guideline nor considered it desirable to do so.  That said, the relevant case law shows that in general, an immediate custodial sentence is imposed for this type of offence.

9. Counsel for both parties referred to a number of authorities in their submissions.  Some of the cases involved “revenge attacks” by triad members and have little relevance to the present case, which arose out of a family dispute.  Only two cases that involved family disputes have reference value.  The first case is HKSAR v. Chou Hsing-kuo, CACC 79/1999.  The defendant in that case attacked his wife with a knife, causing her to fall into persistent vegetative status.  Although the defendant had a clear record, the trial judge adopted a starting point of 12 years and reduced the term to 8 years by reason of his guilty plea.  On appeal, the Court of Appeal affirmed the sentence.  The second case is Attorney General v. Lau Ching-yau, CAAR 11/1991.  It also involved a family dispute that resulted in the defendant assaulting his wife.  Although the defendant had a clear record and pleaded guilty, the Court of Appeal took the view that the 1-year imprisonment imposed by the trial judge was manifestly inadequate and increased the term to 3 years.  In that case, there was no clear evidence or medical report which described the extent of the victim’s injuries and whether she suffered serious disabilities.  In my view, the present case is less serious than Chou Hsing-kuo but more serious than Lau Ching-yau.

10. The factors to be considered in determining the starting point include the seriousness of the charge, the circumstances of the offence, and whether a deterrent sentence is warranted.  In light of these factors, the starting point of 4 years that the learned Judge adopted is, in my view, manifestly inadequate.  Moreover, it was wrong in principle for the learned Judge to give a further one-third discount by reason of the Respondent’s age and clear record.  Taking into account the relevant case law and the seriousness of the present case, an appropriate starting point should be 6 years.

11. The Respondent and the victim have been married for 25 years and have three children.  He has always been working hard as a breadwinner and duly discharging the duty to provide his children with schooling.  He had never committed any offence before, and the present case was a one-off incident which was incongruous with his temperament.  Furthermore, he voluntarily surrendered himself to the police after committing the offence.  He can receive a one-third discount in sentence for his guilty plea; and having regard to his background, there is room for a further reduction of sentence by 6 to 9 months.  This application for review of sentence is taken out by the Secretary for Justice, and on the basis of the sentence imposed by the learned Judge, the Respondent can expect to be released tomorrow.  For this reason, and following accepted practice, this Court can consider a further reduction of sentence.  Viewing the case as a whole, an appropriate sentence that can reflect the seriousness of the offence will be imprisonment for 3 years.  I therefore allow the application of the Secretary for Justice to review sentence, set aside the sentence imposed by the learned Judge and impose on the Respondent a sentence of imprisonment for 3 years.

Mr Albert Wong, Senior Government Counsel, for the Applicant.

Ms Juliana Chow, assigned by the Legal Aid Department, for the Respondent.

Translated by Mr. Edmund Cham, Solicitor