HKSAR v. Au Yeung Chu

CACC000115/2002

CACC 115/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 115 OF 2002

(ON APPEAL FROM DCCC 1119 OF 2001)

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Coram: Hon Stuart-Moore VP, Stock JA and Lugar-Mawson J

Date of Hearing: 15 May 2002

Date of Judgment: 15 May 2002

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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):

Introduction

1.On 12 March 2002, the Applicant, aged 33, pleaded guilty before Judge Line in the District Court to wounding, contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212. She was sentenced on the same day to serve six months' imprisonment against which she now seeks leave to appeal.

The facts

2.The prosecution's case was straightforward. On 26 February 2001, outside the second floor library in the Prince of Wales Hospital, the Applicant attacked the victim by striking at her face with a sharp instrument. In the result, the victim received cuts to her face and the palm of her left hand. The medical report describing the injuries stated that there were two superficial cut wounds over the right cheek measuring 5 cms and 1.5 cms respectively. In addition, there was a 1 cm wound on the left ear, and a wound measuring 2 cms on the left palm near the thumb. This injury revealed that the digital nerve had been cut. This has caused a degree of numbness ever since.

3.Behind these simple facts there was an equally straightforward motive for the attack which explains why it occurred although it provided no excuse for it. The Applicant, a nurse, is married to Dr Cheng Wing-kei. They worked at the United Christian Hospital. In December 2000, Dr Cheng met the victim, a 22-year-old medical student at the Chinese University while she was attending a four-week practical training course under his supervision, and in that month messages were passed between them which gave the Applicant cause to suspect that all was not as it should be. In late January 2001, as the Applicant discovered, her husband spent an afternoon with the victim at Sai Kung. On 26 February 2001, the Applicant discovered that her husband, to whom at that stage she had been married for about nine months, had sent an e-mail to the victim on 14 February 2001. It was a Valentine's message expressing deep affection for her.

4.Having made this discovery, the Applicant then demanded to talk to both parties but the victim refused to attend a meeting. Dr Cheng then went to the Prince of Wales Hospital where she was attending a course but again she refused to have a talk. When the Applicant was told this, she then wanted to go to the Prince of Wales Hospital herself. Dr Cheng drove the Applicant to the hospital, arriving at about 1.00 p.m. Using a mobile telephone, they again tried to persuade the victim to speak to them, but she refused to see them.

5.At about 1.45 p.m., Dr Cheng gave the Applicant a description of the victim. She then said she was going to the toilet and she left, taking with her the mobile telephone belonging to her husband. At about 2.00 p.m., the victim went into the toilet on the second floor of the hospital. She noticed a woman inside who was apparently looking for someone. She paid little attention to this woman who it was quickly discovered was the Applicant.

6.When the victim was leaving the toilet and as she was making her way back to the library, she answered a call on her mobile telephone. She could then hear her name being called out. She turned round and saw the Applicant coming from the toilet where she had only moments earlier seen her. The Applicant demanded to have a talk with her and it was then that they both went onto the podium outside the hospital library.

7.It was while the Applicant was asking the victim about her relationship with Dr Cheng that she suddenly attacked the victim. The victim's face began to bleed. The injury to the victim's hand resulted from her attempts to protect her face.

8.The Applicant later gave herself up to police when she went into a police station at 8.10 p.m. She admitted seeing the victim during the afternoon and said that she had "slapped" her face.

Mitigation

9.Various factors were advanced in mitigation by Mr Grounds, who also appears for the Applicant in these proceedings. He referred, amongst other things, to the Applicant's guilty plea, her clear record, her surrender to the police, the provocation and stress under which the Applicant was operating, and her willingness to compensate the victim whose attitude was generally one which exhibited forgiveness towards the Applicant. As to this last aspect, the judge accurately expressed the situation when he said: "This is not a case where the victim actively intervenes in support of a plea of mercy ...." but he accepted that this was her general attitude. The mitigation also revealed considerable support from colleagues and superiors in the medical profession.

10.It was said by Mr Grounds in mitigation that the Applicant suspected that the facial cuts to the victim's cheek had been caused by the diamond ring she was wearing when, according to what was said on her behalf, she gave two back-handed slaps to the victim which accounted for the two separate cuts to the right side of the victim's face. It was accepted, however, that the ring could not have been the reason for the wounds to the victim's ear and hand. As to these wounds, Mr Grounds said that they were caused by a "broken piece of a manicure set used for cuticle control" which he said the victim happened to have in her trouser pocket. He went on to say "Clearly that object, when she lost control, was in her hand causing at least (those) injuries." Mr Grounds has accepted in today's proceedings that in advancing this mitigation in the court below he believed his client had been holding the weapon in her right hand. However, today the Applicant has indicated for the first time that she was in fact holding the weapon in her left hand although it is accepted that she is right-handed. This was after the court had queried the practical likelihood of the scenario which had been advanced on her behalf in the court below.

Sentence

11.In passing sentence, the judge remarked:

"Please do not think that I do not understand the power of jealousy, especially sexual jealousy. I can comprehend the passion it provokes and how that can lead an otherwise respectable and decent woman like yourself to physical violence. Having seen the e-mail referred to in the summary of facts I can appreciate the emotions it aroused so soon after your marriage. That has to be balanced against the fact that a civilised society rightly expects restraint in a situation such as you were in. You cannot shed a rival's blood without facing meaningful punishment.

In February last year you sought out the young lady in question. You attacked her. In the course of that attack you used a weapon. I am told it was a sharp piece from a manicure set that you just happened to have in your pocket. You went for her face, a pretty face, with that weapon and that is clear from the laceration to the victim's ear, however it was that she received the cuts to her cheek. You pressed on as the victim sustained a defensive injury to her hand. It severed a digital nerve.

That is conduct which has to be met with imprisonment. I judge it to be too serious for community service. I do not forget that the acceptance of your plea to wounding contrary to section 19 of the ordinance acknowledges a lack of an intention to cause really serious harm. I remember that you surrendered yourself, that you have shown remorse, that you are willing to pay compensation, that you have pleaded guilty.

Of course, you have a clear criminal record and I have seen an impressive array of letters that speak to your good character and the sort of person you otherwise are. Your fall is a hard one. The damage these events have done to you over the last year or so is enormous.

I have seen the victim. She still bears the visible marks of the attack but happily they are not too significant. It has to be remembered that no one can judge to a nicety the extent of injury in circumstances such as these. It is greatly in your favour that the injuries are not grave. The operative repair to the hand was successful. There is a lasting result of some numbness to the thumb.

The attitude of the victim does not appear to be vindictive. It is said to be forgiving." (Appeal bundle pp. 10-11)

12.Plainly the judge had considered with care the matters raised in mitigation. He went on to say that, in the light of the mitigation he had heard, he would take a starting point of nine months which was "much lower" than he had at first considered to be appropriate. The judge then reduced this by a third to reflect the plea of guilty.

The application

13.Mr Grounds submitted that whilst the judge may have taken the salient aspects of mitigation into account, he had not given sufficient weight to them. He complained that the manner in which the victim came by her facial injuries, as put forward in mitigation, may have been rejected by the judge without any prior indication to alert counsel that he was minded to take such a view. He also criticised the judge for stating that he was taking a lower starting point than the one he had first had in mind without stating what the higher starting point had been, and by using mitigating factors "in a vague and indeterminate manner" to reach a starting point rather than using these to reduce the sentence from the selected starting point.

14.There was, as can plainly be observed from the passage in the Reasons for Sentence we have cited already, no question of the judge having rejected the mitigation about how the injuries to the victim's right cheek had possibly been caused by the Applicant's diamond ring. If the judge had been sceptical about that theory, the theory of the ring, one could not have been surprised. We have tried, with some difficulty, to envisage how in one moment the Applicant delivered two backhand slaps with the right hand causing two streak injuries to the face and in the very next moment had in her hand a sharp weapon, which she had not already been holding; a scepticism which arises whether, as was suggested in the court below, the weapon was in the right hand or, as has today been suggested, in the left. Be that as it may, it appears clear that the judge did not query the mitigation in this regard and made an assumption in the Applicant's favour. Counsel had not submitted that the injuries to the cheek had definitely been caused by the ring and the judge had said nothing to indicate that they had not been. That is evident from the fact that he said that the weapon held by the Applicant caused the laceration to the ear "however it was that she received the cuts to her cheek". It is clear, therefore, that the Applicant used a sharp implement of some kind to attack the victim in the region of her face. She was quite deliberately using this when she cut the victim's left ear. She also caused the cut to the victim's hand as the victim tried to defend herself from the sharp weapon which was being directed towards her face. This is the aspect of the case that makes it a particularly serious one despite the emotional and even provocative background and circumstances against which the attack took place.

15.In this context, it was disturbing to read a report in the South China Morning Post, on the day after the District Court proceedings had concluded, which suggested that the injuries suffered by the victim had merely resulted from a ring worn by the Applicant when she slapped the victim. The article referred to the ring as having caught the victim's face as the Applicant slapped her. It made no mention of the sharp weapon which had deliberately been used to cut the victim's ear and to wound her hand. This was a materially inaccurate report which may have caused some public disquiet at the time as it painted a false impression of an accidental wounding as opposed to a deliberate attack with a sharp instrument to the region of the victim's head. The public is entitled to accuracy in the reporting of news from the courts and this example fell below the standards to be expected.

16.There was no justification, so far as we can tell, for the criticism that the judge rejected any of the mitigation. On the contrary, he appears to have accepted it, with the result that the higher starting point the judge had at first thought he would adopt was considerably reduced once the gravity of the offence had been properly assessed in its full context.

17.It has been suggested that the Reasons for Sentence imply, contrary to the mitigation advanced, that the judge proceeded on the basis that the Applicant left home with the intention then to attack the Applicant. Mitigation had been advanced on the footing that the Applicant just happened to have the sharp instrument in her pocket. Whilst again, some may have been dubious about that, the judge did not suggest, either in the course of mitigation or in his Reasons for Sentence, that he did not accept that. It is true that the judge did not say in terms that he accepted that the attack was not planned prior to the Applicant's departure from home, but then, equally he did not suggest that he was sentencing on the footing that it was planned. This is an experienced judge and we can safely assume that if he had rejected the mitigation on this point he would have said so. We can also say that if the attack had been premeditated the sentence would undoubtedly have been higher.

18.We turn finally to the judge's approach to the starting point. What he said was:

"All the matters of mitigation I reflect in taking a starting point which is much lower than the one I first had in mind. After trial I would have imposed a sentence of 9 months' imprisonment on the basis that the mitigation that is now available would have been available then. I have reduced that by one-third for the plea of guilty." (Appeal bundle p. 12)

19.There was no requirement for the judge, in our opinion, to identify the starting point he had originally considered might be appropriate. What mattered was that having been given all the facts about the offence, he was eventually able to arrive at a proper starting point which reflected the full picture presented to the court.

20.We do not consider that a starting point of nine months after trial, given the nature and circumstances of the offence and taking into account the mitigation, was manifestly excessive. Obviously the judge must originally have had in mind a higher starting point. The deliberate use of a sharp instrument directed at the face in an attack which she "pressed on", as the judge put it, after the initial assault has to be regarded as serious.

21.The judge clearly explained why it was, despite the Applicant's good character and the factors properly advanced in mitigation, that he felt compelled to impose a sentence of six months' imprisonment. We have concluded that the reasons he gave were cogent.

Conclusion

22.Accordingly, this application is dismissed.

Representation:

Ms Lily Ho May-yu, SGC, of the Department of Justice, for the Respondent.

Mr Christopher Grounds and Mr Chan Kai-ho, instructed by Messrs Lau & Chan, for the Applicant.