Secretary for Justice v. Hung Kar Chun

CAAR 9/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 9 OF 2010

(ON APPEAL FROM DCCC NO. 99 OF 2010)

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BETWEEN

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Coram: Hon Cheung JA, Hon Yuen JA and Hon Au J in Court

Date of Hearing: 6 October 2010

Date of Judgment: 6 October 2010

JUDGMENT

Hon Cheung JA (giving the judgment of the Court):

Review of Sentence

1.The respondent Hung Kar Chun was charged with one count of “Wounding with Intent”, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap 212, Laws of Hong Kong (“the Ordinance”). He pleaded not guilty to the charge. After trial before District Judge Yung, the respondent was found guilty and sentenced to 9 months’ imprisonment. The Secretary for Justice applies for a review of the sentence.

The Facts

2.The facts of the case show that the respondent was the boyfriend of a girl whose elder brother (‘PW1’) is the victim of the present case. PW1 learned from his younger sister (‘sister’) that the respondent often kicked up a row for no reason and bullied her; and that they had a very unhappy relationship.   PW1 often sought to persuade his sister not to go out with the respondent.

3.On 8^th November 2009, PW1 and his sister went to see a film in a shopping mall in Kwun Tong. After they left the cinema, the respondent showed up because he and the sister had previously arranged to meet each other. On seeing the respondent, PW1 dragged his sister away and stopped her from meeting the respondent. Subsequently, when the sister answered a call from the respondent, PW1 stopped her from talking to him. He took the phone from her and argued with him, warning him not to disturb his sister again. However, as the respondent kept calling his sister after that, PW1 asked the respondent to meet him in the lobby of the shopping mall for negotiating for a solution.

4.PW1 and his sister waited for the respondent in the lobby of the shopping mall. After a short while, he saw the respondent approaching them in quick paces with a knife in his hand. The sister rushed forward to intercept the respondent but he dodged and continued to dash forward. At that moment, the respondent raised the knife in his right hand to the front from his back. The sister continued to try to separate the respondent and her brother who then pulled her behind him and pushed away the respondent with his hand(s). A struggle ensued. Eventually, the sister took the respondent away from the scene. PW1 then found himself bleeding with a stab wound below his waist. The medical report indicates that he had a deep laceration of 2 to 3 centimetres in length and 5 centimetres in depth, a total laceration of 1.5 centimetres in length in his spleen as well as blood clot(s) and blood of approximately 200 millilitres in his abdominal cavity. After several failed attempts to staunch the bleeding, he underwent an operation in which his whole spleen was removed.

5.The respondent had previously indicated that he was willing to admit the offence of “wounding” under section 19 of the Ordinance. However, his guilty plea was not accepted by the court because he insisted that it was an accident. Subsequently, the original charge was even substituted by one under section 17 of the ordinance.

6.At trial, the respondent elected to give evidence. At the time of the offence, he was aged 29, working as a graphic designer in a newspaper and had no previous criminal record. He agreed that he voluntarily took part in the video interview with the police. In the record of that interview, he admitted feeling disgruntled with PW1’s obstruction against him from meeting his girlfriend and admitted acting impulsively. He went to a household goods store ten minutes’ walk away from the shopping mall and bought for $10 a fruit knife of about 20 centimetres in length before returning to the mall. On the way, he called PW1, telling him that he had just bought a knife and that he would stab him to death unless he left. When the respondent arrived at the mall and saw PW1 with his sister, he took out the fruit knife from his trouser pocket and held it in his right hand. He told PW1 to leave or else he would stab him to death. The respondent admitted that, when he was 3 to 4 metres away from PW1, he had already drawn the knife from its sheath.

The Finding of Guilt

7.According to Judge Yung, although none of the witnesses was able to point out with certainty when and how PW1 got injured, given the respondent’s acts of dashing forward and raising the knife to the front from his back, His Honour found that the respondent did commit the act of stabbing PW1 with the knife. Judge Yung was of the view that, as PW1’s injury was not caused by gashing or scratching but stabbing, it could not have been caused by the pushing and shoving between the two men. On the facts of, inter alia, the respondent’s acts, his discontent against PW1, the sharpness of the weapon, the location of the stab wound and its depth of 5 centimetres, Judge Yung found that the respondent had deliberately stabbed PW1.

Reasons for Sentence

8.In sentencing the respondent to 9 months’ imprisonment, Judge Yung made the following remarks:

“4. I have taken into account that this case is special and somewhat unpremeditated. I also believe that you in fact have problems in controlling your emotions. As to whether it is because you insist too much on your own views on everything or because of other reasons, the court does not have to speculate. However, these are your own emotional problems. Therefore, being as lenient as possible, I now sentence you to 9 months’ imprisonment.”

9.Besides, Judge Yung mentioned another mitigating factor that PW1 had already forgiven the respondent.

Our View

10.“Wounding with Intent” is a serious offence that carries a maximum sentence of life imprisonment.

11.Judge Yung passed a lenient sentence on the respondent in the light of the fact that he committed this out of character violent act after losing control of his emotions as he thought that PW1 was obstructing him from going out with his girl friend. Nonetheless, for the following reasons, we are of the view that Judge Yung erred in principle in sentencing the respondent to 9 months’ imprisonment and the sentence was manifestly inadequate:

(1)   In assaulting PW1, the respondent used a lethal weapon – a sharp fruit knife with a length of 20 centimetres. The courts of Hong Kong have reiterated in previous cases that the courts would not tolerate attacking another person with a lethal weapon such as a chopper or knife on minor provocation or while having a dispute, and that the courts would, in dealing with this kind of cases, impose more severe punishment as a deterrence (see: Attorney General v Low Wing Wah CAAR8/1995).

(2)   This was not purely an unpremeditated case. It was not the case that the respondent offhandedly picked up an object at the scene to attack PW1 when he was engulfed in rage. His acts were planned and malicious: after the two had an argument over the phone, the respondent left the mall and took a 10 minutes’ walk to buy the weapon before returning to the mall. On the way, he even phoned his girl friend, making threatening remarks to PW1. This is different from the circumstances where a person attacked another person having lost control of his emotions as a result of a dispute.

(3)   The victim suffered severe harm to his body. The removal of his spleen has impaired his auto-immune functions and is bringing him frequent fatigue. Although PW1 has expressed his forgiveness of the respondent, at the same time, the court has to take into account the public’s concern about this kind of violent incident and the severity of the case instead of placing too much importance on the victim’s personal feelings.

(4)   Various public figures as well as relatives of the respondent have asked for leniency on him. They described him as law-abiding, charitable and kind-hearted, nonetheless, the court must also take into account the severity of the case.

12.As every wounding case has its own background and particular extent of injury, no sentencing guideline has ever been laid down. Nevertheless, the Court of Appeal has stated in a previous case that the sentences for “Wounding with Intent” should be within the range of 3 to 12 years. (see: HKSAR v Yuen Wai Kui CACC 280/2004). In our view, the 9 months’ imprisonment passed by Judge Yung cannot reflect the severity of the case. Having taken into account the background of this case and the fact that this is an application for reviewing the sentence, we consider that the appropriate sentence should be 2½ years’ imprisonment on review.

Conclusion

13.We grant the application for review and vary the term of imprisonment to 2½ years accordingly.

Mr. Wesley Wong, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Applicant.

Mr. Jasper Kwan, assigned by the Director of Legal Aid, for the Respondent.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.