Secretary for Justice v. Yiu Man Chun

CAAR 14/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 14 OF 2010

(ON APPEAL FROM DCCC NO. 508 OF 2010)

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BETWEEN

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Before: Hon Stock VP, Fok JA and McMahon J

Date of Hearing: 4 April 2011

Date of Judgment: 4 April 2011

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.On the night of the 12 to 13 April 2010, the respondent entrapped his former girlfriend, Ms Au, in her apartment in Sham Shui Po for several hours.  In the course of the escapade and whilst the police were seeking access to the flat, the respondent wielded a cutter which he pressed against her neck and chin and wounded her.

2.These events resulted in two charges in the District Court to which the respondent pleaded guilty: a charge of false imprisonment, contrary to Common Law and punishable under section 101I of the Criminal Procedure Ordinance, Cap. 221; and a charge of wounding, contrary to section 19 of the Offences against the Person Ordinance, Cap. 212.

3.On 26 November 2010, Judge Remedios sat in the District Court sentenced the respondent to 12 months’ imprisonment in respect of each offence and ordered that six months of the term imposed in relation to the second charge should run consecutively to that imposed for the first, the remainder concurrently, making a total of 18 months’ imprisonment.

4.On 22 December 2010, the applicant was granted leave to apply for a review of sentence pursuant to section 81A of the Criminal Procedure Ordinance.  This is that application.

The facts

5.At the material time, the respondent was aged 46 years and Ms Au 29 years.  She had been his girlfriend.  He has a long criminal record: 35 previous convictions going back to 1984, many drug-related.

6.Of particular significance is the fact that in May 2009 he treated her with violence for which in September 2009, on two charges of wounding, he was sentenced to a total of 12 months’ imprisonment.  He was released from prison for those offences on 25 January 2010.

7.It follows that the offences with which we are concerned occurred less than four months after his release from prison for committing offences of the same nature on the same victim.

8.According to the victim impact report prepared by a psychologist which was placed before the court below, the respondent promised after the May 2009 incident that he would never hurt Ms Au again and she, persuaded by the apparent sincerity of letters written by him to her before the 2009 court appearance, visited him while he was in prison.  On his discharge in 2010, the relationship resumed but things did not go well and in February 2010 he moved out of her flat.  

9.The following facts of the events of the night of 12 April 2010 were admitted by the respondent.  

10.At about 9:25 pm, he visited Ms Au’s flat.  Whilst there, he spoke on the telephone with his sister and an argument developed with the sister.  Ms Au became frightened and wanted to leave the flat but the respondent prevented her from doing so and, in shutting the gate, he injured her hand.  Shortly before 1 am, Ms Au made a telephone report to the police saying that her ex-boyfriend was preventing her from leaving her apartment.  The police arrived but the respondent refused to let them in.  They heard Ms Au shouting for help.  The respondent told them to leave and he blocked the entrance to the flat with a wooden table.  

11.The Summary of Facts goes on:

“D took a hammer to hit the wooden table and his own hand. D then took a cutter, grabbed [Ms Au’s] neck and pressed the blade of the cutter against [her] neck and chin, causing [her] to suffer cut wounds on her neck and chin.”

12.In response to a promise by Ms Au that she would not inform the police about her injuries, so the agreed facts ran, the respondent surrendered the hammer and the cutter to her and after some negotiation, he allowed the police entry into the apartment at about 6 am.  He told the police that he had not wanted her to leave because he wanted to discuss their relationship.  As for the injuries she sustained, he blamed that on the fact that, according to him, she kept moving around while he held the cutter to her.  

13.Ms Au was diagnosed to have suffered from tenderness on the neck and right hand with bruising to that hand and cut wounds to the neck.  We have a photograph taken shortly after the events of the right side of her face, which shows a cut of about 4 cm along the right jaw-bone and a smaller cut slightly above it as well as marked patches of red to the neck.  There is no suggestion of any likely permanent scarring.  

Mitigation

14.ln mitigation in the court below it was suggested that the respondent had been highly emotional on the night in question and only wanted “to verify the relationship with the victim of this case”; he just wanted “to threaten or frighten the victim of this case”.  It was contended that he was very remorseful for his behaviour.  

The victim impact report

15.Understandably, the judge called for a victim impact report as well as for a report by a psychologist in relation to the respondent.  

16.The psychologist saw Ms Au in November 2010, that is to say, some seven months after the attack.  No one should be surprised by the fear visited upon Ms Au by the events of that night, not least given the background of previous violence and the fact that earlier imprisonment had not deterred the respondent.  But the victim impact report brings the degree of fear vividly to light.

17.The psychologist noted that at the time of the interview Ms Au was in a highly stressed condition and “re-experiencing the catastrophic attacks”.  She was diagnosed as suffering from post-traumatic stress disorder.

18.The suggestion in the report was that in the May 2009 attack she was stabbed with a cutter “after over 10 hours of being threatened”.  After the respondent’s release from prison in January 2010 and as a result of several emotional episodes, they agreed to separate although they maintained occasional contact.

19.The psychologist concluded that the latest episode “exerted cumulative destructive impact on her ego, integrity and strongly [shook] her sense of security.  [She] showed strong difficulties in modulating her affect and frequently plagued by the alteration between re-experiencing and numbing state.  [She] lacks social and family support, she is vulnerable to the development of complex traumatic stress disorder.  She felt self-blamed and regretful that she should have listened to the policemen’s advice not to see [the respondent] again after he was arrested ... last May”. The psychologist concluded as follows:

“Although Madam Au has been a self-reliant person, she is now cognisant of that her mental fragility (i.e. hands trembling; unsettled emotions; terrified; wobbliness in legs) does not allow her to take up any work in the meantime, thus receiving psychotherapy is her first priority. Financial stringency would become her secondary stress. While long-term psychotherapy will be offered to [her] for facilitating her recovery.”

The psychologist’s report on the respondent

20.A clinical psychologist examined the respondent, also in November 2010.  His report described the respondent as confident with a tendency to minimise his wrongdoings.  The description of his social background reveals a person who has habitually associated with rough elements and who for many years has been a substance abuser.  The respondent suggested to the psychologist that after his last imprisonment he suspected that Ms Au wanted to take over his drug dealing business and that after they separated in February 2010 she had discredited him to his mother and he was particularly upset because, as a result, his mother did not give him money.  Accordingly, on the night in question, he confronted Ms Au and the confrontation led to the offences.  The psychologist said that the respondent demonstrated “limited remorse and victim empathy.  Instead, he tended to justify and minimise his aggressive acts as a reactive gesture under provocation by the victim only”.  The risk of violent recidivism was estimated to be relatively high and there was a need for psychological intervention.  Much has been said before us today on the respondent’s behalf about the suggested good chance for rehabilitation but the psychologist’s report in relation to the respondent does not hold great hope for that, given the respondent’s lack of remorse and readiness to shift blame.

The Reasons for Sentence

21.In her Reasons for Sentence, the judge noted the significance of the conviction in September 2009 and in particular the fact that the victim was the same.  She said that it was apparent that the respondent resorted to violence in resolving interpersonal conflicts and was a person easily provoked.  As for the mitigation advanced, she noted that none of it was reflected in the psychological report relating to the respondent.

22.The judge noted also that Ms Au was imprisoned in her premises for something in the order of nine hours and took particular cognisance of the fact that the victim impact report showed that the impact upon Ms Au appeared to be fairly severe; whilst the physical injuries themselves were not serious, the psychological injuries were “more severe”.  The judge said that the plea of guilty showed remorse.  She noted as well that the respondent had said that he was amenable to receiving treatment.

23.For each of the offences, the judge took a starting point of 18 months’ imprisonment and reduced each to 12 months’ imprisonment having given the normal one-third discount for the plea of guilty.  She ordered six months in relation to the second charge to run consecutively to that imposed for the first, the remainder to run concurrently, making a total of 18 months’ imprisonment.

The application

24.The application for review initially concentrates on the sentence for the offence of false imprisonment.  For reasons to which we will later aver, we think it somewhat artificial to separate the two offences in this way.

25.Be that as it may, it is said that the judge failed sufficiently to reflect a number of suggested aggravating features and the features upon which Mr Hui for the applicant in his oral submissions has concentrated are these:

(1)   that the wielding of a hammer and cutter and the use of the cutter constituted a particularly real and frightening threat towards the victim;

(2)   the significant degree to which the victim has been affected in the long term by the events in question;

(3)   the fact that the detention of Ms Au continued for about nine hours including about five hours of confrontation with the police;

(4)   that this was a repeat offence in relation to the same victim shortly after the respondent’s release from imprisonment;

(5)   the lack of remorse on the part of the respondent; and

(6)   the need not only to deter others but a particular need to deter this offender, whose propensity readily to resort to violence is manifest from the history of this case.

26.It is argued that, as a result, the sentences imposed were, in the overall impact, manifestly inadequate.

The response

27.On behalf of the respondent, we have been referred in the written submissions to a number of other false imprisonment cases and cases of wounding.  It is suggested that the sentences imposed in this case were not out of kilter with sentences in other cases.

28.It is argued that the present offences were the result of some provocation by Ms Au, so discrediting the respondent that his mother withheld money he needed; that the present offences involved no breach of trust or abuse of power; that they were not premeditated; that the cutter was used to frighten and not to injure; and that the injuries were not significant.  It is also suggested in the written submissions that this is the respondent’s first conviction for an offence of false imprisonment and emphasis has today been placed on the fact that the court below recognised the importance in this case of rehabilitation.

Our task

29.The question we are to ask is whether the sentences and their overall result were such as to be unduly lenient in the sense that the result “falls outside the range of sentences which the judge, applying [her] mind to the relevant factors, could reasonably consider appropriate”.  Attorney General’s Reference (No. 4 of 1989) 11 Cr App R (S) 517, 521.

Analysis

30.We do not consider ourselves to be assisted by the cases placed before us.  The offence of false imprisonment carries a maximum penalty of seven years.  The type of offence with which we are dealing can occur in such a wide variety of circumstances that it will often, though not always, be difficult to come across a previous decision that exactly or even roughly matches the facts of a case under consideration.

31.There is some artificiality in this particular case in sentencing for two offences trying, somehow, to divorce the false imprisonment from the wounding and treating them as distinct.  Had there been a charge of false imprisonment alone, it would have been perfectly permissible for the sentencing judge to take into account all the facts embraced by the act of false imprisonment, including the act of holding a cutter to Ms Au’s face and the fact that a wound was occasioned.  If we look at the mere fact of a wound to the face, a wound that would occasion no permanent scarring, it may be that divorced from all the circumstances surrounding the act of wounding, the sentence imposed by the judge would be unimpeachable.  Similarly, if one examines the mere act of detention, divorced from the personal violence and the history of violence, one is likely to reach a sentence significantly less than that warranted by the criminality of this case.  The appropriate sentence for an act of keeping someone for several hours in his or her own flat as a result of a domestic dispute will vary enormously according to the history and to all the surrounding circumstances.  So, in this case, it is artificial to split the two criminal acts as if one had nothing to do with the other.  They were closely interwoven.

32.The offence of false imprisonment in this case, including all the events that took place in the several hours in question, was serious.  It was an offence against a woman who was so afraid that she had called the police; was shouting to the police for help; saw the door jammed against them; saw an enraged offender, albeit no stranger to her, wield a hammer, inflict injury on himself with the hammer and then hold a cutter to her neck.  It does not take much imagination to assess the trauma occasioned to Ms Au in such circumstances.  The fact that the respondent was not a stranger to her would have been of scant comfort, given her knowledge of his predilection to violence and its repetition despite a recent spell in prison.

33.The wielding of weapons, namely, the hammer and cutter, is a serious aggravating feature.  To hold a cutter to someone’s throat is particularly aggravating because it is both terrifying to the victim and a highly dangerous act in itself.  It is hardly an excuse to say that the wound was occasioned by the victim moving. It would be surprising indeed if the victim did not move in such circumstances.  It is a matter of some chance that nothing more serious happened.

34.Looked at in this light, the appropriate starting point for the offence of false imprisonment with all its surrounding circumstances, before the aggravating feature of the prior incident, was, in our judgment, a sentence of three and a half years’ imprisonment.

35.The facts of the previous offences of wounding in 2009 and that the current offence occurred within months of the respondent’s discharge from prison, constitute particularly serious aggravating features to which we think with respect the sentencing judge did not accord sufficient weight.  The facts of the previous offences were not put before the judge by the prosecutor, although they were before the court in the context of the two psychologists’ reports.  It is, we think, extraordinary that the facts agreed in 2009 were not placed before the court below.  But it is nonetheless clear from the accounts of Ms Au and the respondent to their respective psychologists that on that earlier occasion a cutter was used to threaten Ms Au.  The facts of the previous offences and that the current offences occurred within months of the respondent’s discharge from prison show an entire lack of remorse for the previous offences and we do not agree with the judge’s assessment that the plea of guilty evidenced remorse for the present offences.  That conclusion is countermanded by the psychologist’s report on the respondent and in the same manner that the respondent’s conduct in writing fervently to Ms Au when, in 2009, he was awaiting trial was, self-evidently, an attempt to achieve a lesser sentence then, the pleas on this occasion were little more than an attempt to secure the substantial discount normally accorded for a plea of guilty, in the face of overwhelming evidence, not the least of which would have been the evidence of the police on the other side of the door.

36.The fact that this was a replay of the 2009 offences illustrates that the sentence imposed on the previous occasion failed to deter him and that a sentence needed to be imposed that would have a greater chance of deterrence and which, at the same time was designed to protect potential victims from this man’s proclivity to violence.

37.Furthermore, the fact that this was the second occasion upon which Ms Au had been subjected to serious violence at his hands significantly aggravated the trauma visited upon her.  The events illustrated to her, at the time that they were occurring, that even imprisonment had not dissuaded him from violence and must have made her feel that almost anything might then happen to her.

38.Taking into account this serious aggravating feature, we determine that an appropriate sentence before mitigation would have been one of four and a half years’ imprisonment.  Given the fact that the respondent pleaded guilty, the appropriate sentence for the offence of false imprisonment would be, subject to any adjustment on account of the fact of this review, one of three years’ imprisonment.

39.This leaves the sentence in respect of the wounding offence.  The maximum term of imprisonment for section 19 wounding is one of three years’ imprisonment.  Since we have dealt with the act of wounding as part and parcel of the facts underlying the false imprisonment, we do not propose to interfere with the sentence imposed in relation to the wounding offence.

40.The proposed sentence of three years’ imprisonment constitutes a substantial upward revision of the sentence and we note as well that, but for this review, the respondent would have been released on 12 April 2011.  For these reasons, the sentence that we will substitute in relation to false imprisonment is a sentence of two years nine months’ imprisonment.

Conclusion

41.Accordingly, we review the sentence imposed, we set aside the sentence imposed in relation to false imprisonment and substitute therefore a sentence of two years nine months’ imprisonment. We will leave undisturbed the sentence of 12 months’ imprisonment imposed in relation to the offence of wounding.  We order the two sentences to run concurrently, so that the resulting term of imprisonment is two years nine months.

Mr Martin Hui, SPP of the Department of Justice, for the Applicant

Mr Walter Lau, instructed by Messrs Cheung & Yip, for the Respondent