HKSAR v. Chan Ngai Kwong

CACC000092/2000

CACC 92/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 92 OF 2000

(ON APPEAL FROM DCCC 86/2000)

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Coram: Hon Stuart Moore VP, Wong and Woo JJA in Court

Date of Hearing: 26 May 2000

Date of Judgment: 26 May 2000

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J U D G M E N T

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Woo JA (giving the judgment of the Court) :

1. The Defendant was on his own plea convicted by His Honour Judge Line for the offence of wounding with intent, contrary to s.17(a) of the Offences Against the Person Ordinance, Cap. 212 in that on 4 December 1999, in a flat at 4th floor, No. 23, Ivy Street, Tai Kok Tsui, Kowloon, he unlawfully and maliciously wounded YEUNG Kwok-keung, with intent to do him grievous bodily harm. The Judge sentenced him to 2 years' imprisonment.

2. The circumstances surrounding the offence can be seen from the summary of facts admitted by the Defendant before the Judge. The Defendant, aged 55 years and the victim, Mr Yeung, aged 56 years, were co-tenants in the flat referred to above. At 9.20 pm on 4 December 1999, the victim and the Defendant had a dispute relating to the victim's 6-year-old son's misbehaviour. In the heat of the dispute, the victim pushed the Defendant who fell on the floor. The Defendant returned to his own room to get a chopper and chopped the victim twice. The victim used a clothes-hanging bamboo to defend himself, but it was broken as a result. The Defendant wounded the victim's right elbow. The victim fell on the floor. The Defendant continued to hack on the victim's neck and left hand. The victim's body was covered with blood. He called the police while the Defendant returned to his own room. Upon the arrival of the police, the Defendant admitted wounding the victim with a chopper under caution.

3. The victim sustained serious injuries. The cut wound on the left back of his neck was about 4 cm long and the one on his right elbow was about 5 cm long. He was admitted to hospital at 11.46 pm on the same day and was subsequently discharged the following day.

4. Before sentence, it was shown to the Judge that the flat in which the incident occurred was a small one in which there were eight small rooms. Each of the eight small rooms was occupied by a household, and the victim and the Defendant each occupied one of the rooms. All the occupants shared kitchen and bathroom accommodation.

5. The Judge was also told, and he accepted, that the victim's family joined him and that caused greater overcrowding in the small, cramped space of the flat. Two of the victim's sons were about 10 years of age and younger who misbehaved themselves in the flat. That caused conflict between the Defendant and the victim. In the evening in question, the Defendant caught one of the sons urinating in the kitchen. A heated argument ensued between the Defendant and the victim who pushed the Defendant to the floor. That gave rise to the chopping incident.

6. Having taken into account all the aforesaid circumstances, the Judge used 4 years of imprisonment as a starting point for sentencing, reduced it by one-third to 2 years 8 months for taking into account the Defendant's guilty plea, further reduced the sentence by 6 months for the Defendant's clear record and that he had lived in the flat for five years without getting into trouble, and eventually arrived at the sentence of 2 years' imprisonment as an overall punishment for the criminality of the Defendant's act.

7. In the Defendant's application for leave to appeal against sentence, certain grounds of appeal are set out, namely,

(1) He has to support and take care of his wife and children who are in his home town in China. He hopes that he would be released earlier so that he could shoulder the responsibility.

(2) He had a good and clear record.

(3) He made a response on provocation and had no motive to do harm to others before the incident.

(4) Before the incident, he was a caretaker and he lost his job because of the incident. He hopes that he would be released as soon as possible so that he could look for a job to earn a living.

8. Grounds (1) and (4) do not constitute any sufficient reason for mitigating sentence. On the other hand, grounds (2) and (3) had been taken into account by the Judge when considering sentence. The Judge had also examined the chopper which was the weapon used by the Defendant in committing the crime. He described it and we have seen a photograph of it as a "fearsome weapon". He also took into account that despite the provocation caused by the victim's pushing the Defendant to the ground, it was inexcusable for the Defendant to have returned to his own room to get the chopper and attacked the victim. What was more unforgivable was that after the victim had fallen to the ground, the Defendant continued to hack him twice with the chopper. The Defendant repeated to us this morning more or less the same matters that were put on his behalf to the Judge. We must say that what he was involved in was a brutal attack totally unwarranted despite the initial provocation from the victim. Had the victim suffered any permanent disability, which does not appear to be the case here which, we must say, is fortunate for the Defendant, a much longer term of sentence should have been passed. All the grounds raised by the Defendant in his notice of application for leave to appeal and in his address before us do not present anything which may justify reduction of sentence. The sentence passed by the Judge is neither wrong in principle nor manifestly excessive.

9. In the circumstances, we refuse the application.

Representation:

Mr David Leung, SGC of Department of Justice for HKSAR

Defendant in person - present