HKSAR v. Yeung Kam Kwai
Read the full judgment text of CACC 458/2007 on BabelCite. This Court of Appeal judgment was delivered on 22 July 2008 before Cheung JA, Yuen JA.
Criminal law – sentencing – wounding with intent contrary to section 17(a) of the Offences against the Person Ordinance (Cap. 212) – guilty plea – starting point – whether injuries properly characterised as serious – whether mitigating circumstances adequately considered – appeal against sentence – isolated act of loss of temper triggered by sustained teasing of elderly epileptic resident – provocation – previous good character – out of character conduct – whether sentence manifestly excessive. The applicant, a 69-year-old man with no previous convictions suffering from epilepsy, stabbed another elderly resident in their old aged home after the victim teased him about his illness. The victim sustained eight stab wounds; one wound 2.5cm in length was the deepest and the rest were skin-level only, with a right pleural effusion requiring drainage of 300ml of old blood but no pneumothorax or rib fracture. He was discharged after about two weeks. The Court of Appeal held that the trial judge erred in characterising the injuries as serious, since apart from the single deeper wound, the remainder were skin-level and the lung was not pierced. Compared with the three authorities cited by the trial judge (Ng Chuk Hung, Chau Wan Fun and Low Wing Wah), the injuries in the present case fell within the lower range and did not justify a 33-month starting point. The Court further held that the trial judge had over-focused on the consequence to the victim and failed to weigh material mitigating factors, namely provocation by the victim, the isolated and out-of-character nature of the act, the appellant's epilepsy, and his previous good character. Citing Chau Wan Fun, Au Yeung Ng, Kwok Cheuk Man and Ng Ka Ling, the Court reiterated that provocation and the isolated nature of a loss-of-temper incident are important mitigating circumstances. Section 17(a) is an excepted offence and does not qualify for a suspended sentence, and probation or community service was inappropriate given the appellant's age and the isolated nature of the conduct. The Court treated the case as a very exceptional one and substituted the sentence to enable immediate release after the applicant had already served over 9½ months in custody since 1 October 2007. The Director of Social Welfare was directed to ensure adequate housing for the appellant on discharge, given that the Home indicated it would not readmit him.
Legal issues: Whether the trial judge overestimated the severity of the injuries in setting a 33-month starting point · Whether the trial judge failed to take into account mitigating circumstances · Whether the sentence of 22 months' imprisonment was manifestly excessive
Outcome: Appeal against sentence allowed; original sentence of 22 months' imprisonment substituted with a sentence enabling the appellant's immediate release from custody.
Cited by 14 cases · Cites 5 cases
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CACC 458/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 458 OF 2007 (On Appeal From District Court Criminal Case No. 956 of 2007) ________________________ BETWEEN
________________________ Before : Hon Cheung and Yuen JJA in Court Date of Hearing : 22 July 2008 Date of Judgment : 22 July 2008 ________________________J U D G M E N T ________________________Hon Cheung JA (giving judgment of the Court) : 1.The appellant pleaded guilty before H H Judge Chua to a charge of wounding with intent contrary to section 17(a) of the Offences against the Person Ordinance (Cap. 212) and was sentenced to 22 months’ imprisonment. Pursuant to leave to appeal granted by a single judge of this Court, he now appeals against the sentence. The appellant 2.The appellant was 69 years of age at the time of the offence. He has no previous conviction. He has been a single person. He lost his parents at a young age and has been living on his own until he was admitted to an old aged home (‘the Home’) in 1999. He has been suffering from epilepsy which occurs several times a month. He would lose consciousness after the fit. He receives medication for his illness. He was described by the staff at the Home as having a stable emotion and was independent in mobility except when he had the epileptic fits. He was considered a placid person, rather outspoken but not a trouble maker. He took active part in the activities organized by the Home and had maintained harmonious relations with the staff of the Home and the residents. The victim 3.The victim was another elderly person living at the Home. He was 76 years of age. He was described by the nurse at the Home as grumpy and quarrelsome. He quarrelled with other residents of the Home and had once threatened a worker at the Home with a knife in 2003. The offence 4.The background to the offence showed that on 30 September 2007, the appellant suffered from epileptic fits for a few times that day. The victim laughed at him and teased him about his illness. The appellant told him to stop but to no avail. The appellant brooded over the matter overnight and decided to teach the victim a lesson. The next morning he took three knives, two in his left hand, went to the victim’s room and stabbed his back with the knives. The victim was rescued by the staff of the Home and sent to hospital for treatment. Under caution, the appellant told the police that the victim always teased him about his disability and epilepsy. The injuries 5.The medical report on the victim dated 24 October 2007 showed that
6.A more detailed medical report of the victim dated 1 December 2007 showed that,
The Judge’s view 7.The Judge used a starting point of 33 months’ imprisonment, reduced it by one third because of the guilty plea and arrived at a sentence of 22 months’ imprisonment. In arriving at this sentence the Judge referred to the decision of Stuart Smith LJ in R v. Nottingham Crown Court, ex parte DPP [1996] 1 Cr. App R. (S) 283 who directed the Court to consider the consequence to the victim when considering the gravity of the offence and the appropriate sentence. Extent of wound 8.The Judge considered that the victim had not merely suffered skin wounds but serious wounds. This view was not wholly justified. It is clear from the two medical reports that apart from the one wound which was the deepest, the length of which was 2.5 cm, the rest are skin level wounds. That particular wound was not ‘2 and 5 centimetres deep’ as described by the Judge. The blood that was later drained was ‘old blood’. Although there was a right ‘pleural effusion’ (i.e. passage of fluid through the blood wall into the membrane which covered the lung) there was no pneumothorax (i.e. a collection of air in the pleural cavity, into which it has gained entrance by a lesion in the lung or by a wound in the chest wall). Hence although the blood vessels were damaged either by the cut wounds or as Mr. Selwyn So, counsel for the appellant, submitted, by blunt objects, namely, the knives, the lung of the victim was not pierced by the knives. The three decisions 9.The Judge referred to three decisions on wounding when she chose a starting point of 33 months’ imprisonment. 10.In AG v. Ng Chuk Hung (CAAR 1/1994), the victim suffered ‘multiple small wounds over left upper chest, arms, side hip and thigh’. A probate order was imposed. 11.In Secretary for Justice v. Chau Wan Fun (CAAR 1/2006), the victim sustained ‘catastrophic’ injuries, he was unconscious five weeks after the attack from which he sustained ‘chest stab wound, laceration of heart with open wound into thorax, and respiratory failure’. Complication from the injuries developed in the victim’s left leg which required its amputation from above the knee. A sentence of 3½ years’ imprisonment was imposed. 12.In AG v. Low Wing Wah (CAAR 8 of 1995), the victim sustained ‘a deep lacerated wound to the eyebrow and the eye, with the result that the victim lost his eye’. A sentence of four years’ imprisonment was imposed. 13.In our view the injuries sustained by the victim in the present case clearly falls within the lower range of the injuries mentioned in these three cases. The injuries to the victim although serious, were not so serious as to require a 33 months’ starting point. Mitigating factors 14.By concentrating on the consequence to the victim the Judge had failed to consider other mitigating circumstances such as :
15.This is a very exceptional case and we considered that the sentence imposed by the Judge was too severe and manifestly excessive. This has been properly and fairly conceded by Ms Sin, SADPP, counsel for the respondent. A section 17(a) offence is an excepted offence and does not qualify for a suspended sentence. A probation order or community service order may not be appropriate in view of the age of the appellant and the isolated nature of the offence. 16.As the appellant had been in custody since 1 October 2007, this means he has served a sentence of over 9½ months’ imprisonment. In the circumstances, we will allow the appeal and will substitute the existing sentence by a sentence which enables him to be immediately released from jail custody. Direction 17.We also direct the Director of Social Welfare to ensure that the appellant will be adequately housed after his discharge from custody in view of the indication by the Home that it will not admit the appellant again because of the present offence.
Ms Mary Sin, SADPP of Department of Justice, for the Respondent Mr. Selwyn K. M. So, instructed by Messrs Betty Chan & Co, for the Applicant |
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