HKSAR v. Mar Pak Chong

CACC426/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 426 OF 2010

(ON APPEAL FROM DCCC NO. 1256 OF 2009)

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BETWEEN

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Before : Hon Yeung VP, Lunn and Wright JJ

Date of Hearing : 7 September 2011

Date of Judgment : 7 September 2011

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JUDGMENT

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Hon Lunn J (giving the judgment of the Court) :

1.At the hearing today, the applicant renewed his applications for leave to appeal against conviction and sentence, earlier applications having been refused on 1 April 2011 by the single judge. The applicant was convicted after trial on 28 October 2010 by Deputy District Judge Johnny Chan of two charges of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212. At trial the applicant appeared in person. Having received reports from two doctors as to the psychiatric condition of the applicant, the judge made a hospital order, pursuant to section 45 of the Mental Health Ordinance, Cap. 136, that the applicant be detained in hospital for one year.

THE TRIAL

The prosecution case

2.The prosecution case at trial was that on 28 August 2009 the applicant had wounded Ms Catherine Fong Kit Lin and Mr Eddie Law Pui Lung with a knife, with intent to do each of them grievous bodily harm, at their place of work, namely at the latter’s solicitor’s offices in Nathan Road, Kowloon.  Ms Catherine Fong was Mr Eddie Law’s receptionist at those offices.

3.On 25 August 2009, Mr Eddie Law met the applicant at his offices and was requested to act on the applicant’s behalf.  The applicant wished Mr Eddie Law to create negative publicity about the manner in which he alleged an American company, Ameritrade, had treated him with the intention that publicity would have an adverse affect on its share price.  The applicant said that he wished to take advantage of the share price movement by selling Ameritrade shares short, thereby making a profit.  Mr Eddie Law advised him that the planned conduct was illegal, involving market manipulation, and declined to act on his instructions.  However, at the request of Mr Eddie Law the applicant left some papers with him so that he could study the matter further.  The applicant paid $200 for the advice that he had received.

4.At a further meeting on 26 August 2009, Mr Eddie Law repeated his earlier advice to the applicant and stated that he would not take up the case.  Eventually, at the request of Mr Eddie Law the applicant left his firm’s premises without having been charged anything further for that meeting.

5.On 28 August 2009, on being informed by Ms Catherine Fong that the applicant had attended the firm’s offices yet again, Mr Eddie Law informed her that he would not see the applicant.  For her part, Ms Catherine Fong communicated that information to the applicant, whereupon he attacked her, striking her multiple blows with his fists and knocking her to the ground.  She screamed for help and struggled.  Eventually, she was able to make her escape and ran into the common corridor on the floor on which the office was located.  There she encountered a male employee of a neighbouring business, a travel agency.  However, because she was pursued by the applicant, she and her neighbour locked themselves into his office.  It was then that Ms Catherine Fong realised that she was bleeding and became aware that the applicant had been holding a sharp implement in his fist when he had struck her earlier.

6.The applicant returned to the offices of Mr Eddie Law, where he confronted him with a knife, which he used to attack Mr Eddie Law.  However, Mr Law fended off the attack as best he could and made his escape from his offices.  Having escaped to a nearby dental clinic he came to realise that he too had been wounded in the attack upon him.

7.Mr Suen Sui Po, a security guard, confronted the applicant in the corridor outside the dental clinic.  The applicant was berating Mr Eddie Law, who was inside the dental clinic, and brandishing a knife.  However, the applicant was persuaded to drop the knife to the floor.  Then, Mr Suen took the applicant to a medical clinic on the 17^th floor where he was treated for injuries to his hand.

8.The alarm having been raised, the police attended the scene of the attacks and found the applicant on the 17^th floor, where he was being treated for some injuries that he had sustained.  Having been arrested and cautioned for the offences of wounding, the applicant admitted having stabbed the two victims with a knife.

9.Ms Catherine Fong was detained for treatment until 4 September 2009 at Queen Elizabeth Hospital.  She had suffered stab wounds to her abdomen, left shoulder, elbow, both thighs and legs.  Those injuries were sutured.  Although she had undergone physiotherapy, she was unable to walk as well as she had been prior to the attack.  Mr Eddie Law was treated for an 8 cm wound to the neck, which exposed the jawbone, and a 5 cm superficial laceration to his stomach.

The defence case

10.The applicant, a resident of the United States of America, gave evidence in the defence case.  He said that he had asked Mr Eddie Law to act on his behalf in a dispute that he had with a company in the United States of America.  However, Mr Eddie Law had declined to act for him.  On 28 August 2009, when he visited Mr Eddie Law’s offices, he became furious when Ms Catherine Fong told him that Mr Eddie Law refused to see him.  He complained to her that Mr Eddie Law had betrayed him and supplied documents to the American company with whom he was in dispute.  Then, he punched, kicked and then stabbed Ms Catherine Fong with a knife.  When Mr Eddie Law came out of his office, the applicant stabbed him with the knife.

REASONS FOR VERDICT

11.In his Reasons for Verdict, the judge found that although Ms Catherine Fong had not seen the applicant holding a knife, she had been attacked by him with a knife as he rained blows upon her.  Similarly, he accepted that the applicant had attacked and wounded Mr Eddie Law with a knife.

12.The judge rejected the applicant’s testimony that he had been pushed by both Ms Catherine Fong and Mr Eddie Law. The applicant was not acting in self defence.  Similarly, he rejected the applicant’s evidence that he had attacked the two victims because he feared for his life.  The judge stated that he was satisfied that the applicant had attacked the two victims with intent to cause each of them serious bodily harm.

SENTENCE

13.In sentencing the applicant, the judge noted that he was an American resident aged 72 years.  The applicant had come to Hong Kong in August 2009.  He had no criminal record in Hong Kong.  Having ordered the preparation of psychiatric reports, the judge noted that both doctors express the opinion that the applicant suffered from a delusional disorder.  Equally, both doctors were of the opinion that the applicant had a high propensity to act violently.  The judge acted on their recommendations and ordered that the applicant be the subject of a hospital order, pursuant to section 45 of the Mental Health Ordinance for one year.

GROUNDS OF APPEAL AGAINST CONVICTION AND SENTENCE

14.At the hearing the applicant was represented by Mr Loughran, on the instructions of solicitors appointed by the Director of Legal Aid.  The court was informed in advance of the hearing that Legal Aid been granted to the applicant because he was a person under a disability.  Further, the court had been forewarned that counsel was unable to advance any grounds of appeal.

15.In his homemade grounds of appeal against conviction and sentence the applicant asserted simply that he had not received a fair trial.  At the oral hearing the applicant advanced grounds as to the delay in his trial taking place, namely from his arrest in August 2009 until October 2010 — a delay of 14 months — as a basis for his assertion that he was denied a fair trial.  This was an argument that he had raised with the single judge.  From enquiries that were made by the court of counsel for the respondent and from our inspection of the lower court’s records, it appears that the explanation for what was on its face a significant delay lay in a number of areas.  Firstly, there was a delay to allow the applicant the opportunity to instruct his own lawyer so that he be represented at trial.  Secondly, when that did not eventuate there was delay so that he could apply for legal aid.  Legal aid apparently was granted on the basis of a contribution being made by the applicant.  In March 2010, the trial was fixed to commence in August 2010.  However at the August hearing, there was again a difficulty with representation and, in any event, the court ordered that psychiatric reports be obtained on the applicant to assist in determining the issue of whether or not he was fit to plead.  It was in all those circumstances that the trial did not begin until October 2010.  We are satisfied that that explanation for delay is justifiable. 

DISCUSSION

16.The case against the applicant was overwhelming.  There was no dispute that he had stabbed both victims.  Ms Catherine Fong sustained multiple stab wounds, whereas Mr Eddie Law had significant wounds to his neck and a stab wound to his abdomen.  The judge was entitled to determine that the applicant inflicted those wounds intending to cause grievous bodily harm to the two victims.  Clearly, there is no merit in the application for leave to appeal against conviction, which is dismissed.

17.Given the undisputed evidence of the two psychiatrists that the applicant suffered from a delusional disorder and that he had a high propensity to act violently the hospital order imposed on the applicant for a period of one year was entirely appropriate.  There is no merit in the application of leave to appeal against sentence, which is also dismissed.

Ms Vinci Lam, SPP of Department of Justice, for the Respondent.

Mr Paul Loughran, assigned by Legal Aid Department, for the Applicant.