HKSAR v. Chou Hsing Kuo

CACC000079/1999

CACC 79/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 79 OF 1999

(ON APPEAL FROM HCCC 169 OF 1998)

-------------------------

Coram: Hon. Nazareth, Ag. C.J.H.C., Stuart-Moore, V.-P., and Mayo, J.A. in Court

Date of hearing: 17 June 1999

Date of delivery of judgment: 17 June 1999

----------------------

J U D G M E N T

----------------------

Mayo J.A. (giving the judgment of the Court):

1. The applicant pleaded guilty to wounding with intent, contrary to s.17 of the Offences against the Person Ordinance, Cap. 212. He was sentenced by Beeson, J. in the High Court to 8 years imprisonment and now seeks leave to appeal against that sentence.

2. It was a tragic case. The victim was the applicant's wife. They had been married for over thirty years. The applicant assaulted her with a chopper and she sustained very serious head injuries which have left her in a condition which has been described as being like a vegetable. There is no realistic prospect of her recovering her faculties.

3. The marriage had not been a happy one. The applicant admitted that he had some time ago formed an extra marital relationship which his wife had become aware of and that she had been deeply resentful of this. Matters had not been improved when the applicant's endeavours to invest the family savings had ended disastrously. The applicant had lost $300,000 speculating in gold futures and had lost $0.5 million when the stockbroking firm whose services he had used defaulted.

4. At the time of the offence which was February 1998 the applicant was aged 60 and his wife was 59. His employers had asked him to work in Guangdong for a year. On the day proceeding the incident the applicant had returned to the flat where he had lived with his wife and their 28 year-old son to collect items of clothing and personal possessions for his use in China.

5. His visit had not been a happy one. There had been mutual recriminations and discussions concerning a divorce. According to the applicant he had acceded to his wife's request for a divorce. However she had insisted upon a variation of the terms which had previously been discussed and had said that she had wanted to obtain all that remained of the family fortunes.

6. On the morning of 22nd February the son had gone out early to a library. There had been an argument which had escalated to physical violence. The wife had attacked him with a chopper. He had succeeded in wresting it off her and had then attacked her with it.

7. The 30 year-old daughter who was living apart came later in the morning and she saw her mother lying in a pool of blood. The applicant was in a dazed condition and she understood from him that it had been him who had attacked her mother. She called the police and an ambulance and her mother was taken to the Queen Mary Hospital where she was found to be in a very poor condition. A number of operations were performed upon her with somewhat limited success.

8. After an able analysis of the situation the Judge concluded her Reasons for Sentence in this way:

"In considering sentence for this matter, I take into account the fact that the defendant has pleaded guilty to this offence. I also take into account that this was a very serious chopping which resulted in the most tragic consequences - consequences which are almost worse than death.

I have no doubt that the defendant is remorseful for his actions. I think it unlikely that he would offend in this manner again. Nevertheless, having said that, this was a very serious offence of violence. The domestic history explains but does not excuse it.

There is no history of psychiatric disorder that would really explain this incident. A medical report obtained in the adjournment period indicates that the defendant is physically fit, apart from an impaired liver function which is apparently under treatment, and some problem with oedema in his legs.

In setting a starting point for this offence, I take into account the defendant's clear record, his age and the fact that the attack was not premeditated. I take into account the very serious consequences to the victim. I adopt a starting point of 12 years. I give the defendant a discount for his plea and I sentence him to 8 years' imprisonment."

9. The first perfected ground of appeal is that:

"1. The Learned Trial Judge gave no or no sufficient weight to the evidence of DW1, Mr. Pang Chung and the letters in support of the Applicant which were put before the Court."

10. The Judge dealt with Mr. Pang's evidence in this way at p. 16 of the appeal bundle:

"A letter was also put in by Mr. PANG Chung, a director of Chinluck Holdings, who also gave evidence as to character before me today. He said he had known the defendant for almost 10 years through their basketball activities and that he had been working for the company for about 15 months prior to the incident. He said the defendant had a serious work attitude, was very loyal and that he had never seen him in a state of anger or in a state of loss of self-control."

11. It is apparent from reading the Reasons for Sentence as a whole that the Judge was fully mindful of the applicant's previous good character and that she proceeded to sentence him on the basis that the attack on his wife was an aberration and wholly inconsistent with his previous conduct.

12. There is nothing in this ground of appeal.

13. Ground two complains that:

"2. The Learned Trial Judge gave no or no sufficient weight to the Psychiatric Reports on the Applicant of:-

(i) Dr. Chung dated the 19th October, 1998, and

(ii) Dr. C.H. Yuen dated the 21st January, 1999."

14. It is clear that the Judge gave the most careful consideration to the medical evidence.

15. She said this at p. 16 of the appeal bundle:

"Prior to sentence I obtained a probation officer's report and a psychiatric report. A psychiatric report prepared by Dr CHUNG Tze-yuen had been put before me on the last occasion. Dr CHUNG's report detailed the family background and history and Dr CHUNG gave as his opinion that at the time of the offence Mr CHOU was suffering from adjustment disorder with mixed anxiety and depressive mood.

He considered that the mental disorder, as he termed it, began about September of 1997 and was brought about initially by the loss of the defendant's savings in the stock market, but was made worse by the long-standing conflicting and stormy relationship that he had with his wife. He considered that the offence was out of character for the defendant, but that no admission to a mental hospital was needed.

The report I received from Dr C H YUEN indicated that he considered that from what he had learned from the defendant and the family members, that the wife was a highly provocative woman who seemed to have hated the defendant. He considered that at the time of the offence, the defendant was in a state of heightened emotion and his judgment was impaired. He was not wholly in agreement with Dr CHUNG over the fact that Mr CHOU was suffering from an adjustment disorder with mixed anxiety and depressive mood at the time of the offence.

He agreed that the defendant had had a considerable degree of mental suffering in the months prior to the offence, but said that the severity of those symptoms was not out of proportion to the stress that he was facing. He noted that there was no impairment in the defendant's occupational functioning and seemingly no change in his social relationships at the time of the alleged disorder.

It's rather difficult in this case to get an objective and balanced view of the circumstances of this marriage because one of the partners to the marriage is now effectively a vegetable. For that reason, I have to be careful in looking at both the psychiatric reports and also the probation officer's report."

16. There is a limit to the amount of assistance which can be derived from medical reports. Doctors and psychiatrists are only able to form a medical view on a patient. Here the psychiatrists seemed to be agreed that the applicant was not suffering from any really serious mental illness. This ground cannot be sustained.

17. In Ground three it is complained that:

"3. The Learned Trial Judge erred in her finding that the wife suffered a 'frenzied and prolonged' attack by the applicant."

18. It is hard to see how the attack could have been otherwise than prolonged and frenzied. On the agreed facts it was certainly not a calculated and rational attack. It also was clearly not of limited duration. This is manifest from the nature and extent of the injuries suffered by the victim.

19. Ground four complains that:

"4. The Learned Trial Judge's statement that she found it 'difficult to understand why the defendant couldn't have just unlocked the door and walked out' was a matter of speculation and not to be considered against the Defendant."

20. The Judge does not say that she held this against the applicant. It does however remain true that the wife could not have kept the husband in their home indefinitely. It must be the case that eventually the applicant could have opened the door and left.

21. In the final analysis the question which remains is whether the sentence which was imposed was either wrong in principle or manifestly excessive.

22. What has to be borne in mind is that the consequences of this attack were truly devastating. In fact it could be said that short of terminating his wife's life the injuries could hardly have been more serious.

23. It is clear that the Judge did give as much credit as she could to the applicant's previous good character. It was however ultimately necessary for her to sentence the applicant on the basis of his criminality. Taking all considerations into account it cannot be said that the Judge erred in passing the sentence she did. Accordingly this application is dismissed.

Representation:

Mr. A.A. Bruce, S.C., S.A.D.P.P. & Ms. Grace Chan, S.G.C., (D.P.P.) for Respondent

Mr. Ronald E. Mayne assigned by D.L.A. for Applicant