HKSAR v. Ho Wing Lung

CACC149/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 149 OF 2011

(ON APPEAL FROM DCCC NO. 1174 OF 2010)

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BETWEEN

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Before: Hon Yeung VP and Line J in Court

Date of Hearing: 15 September 2011

Date of Judgment: 15 September 2011

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J U D G M E N T

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

1.This is an application for leave to appeal against a sentence of 2 years and 11 months’ imprisonment for wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212, that was passed on 21 March 2011 by Deputy District Judge A. Yim.  The Applicant pleaded guilty on the second day of his trial.

2.The 27-year-old victim in the case had been a friend of the Applicant.  He came to know the Applicant’s wife, who moved out of the matrimonial home in February of 2010 at a time when the Applicant was in custody for a dangerous drugs offence.  The victim moved in with the wife at her new address.

3.The Applicant was discharged from prison in May 2010.  On 22 June 2010, the Applicant went with a friend to his wife’s new home at 4.30 in the morning.  He demanded entry at the door and, when he failed to achieve it, he entered the premises through a window.

4.He found his wife and the victim in bed together.  He left the premises through the door, and picked up two glass bottles.  He went back inside and attacked the victim, who was lying on the bed, with the bottles, striking at his head two to three times.

5.The force used was sufficient to break a bottle on his head.  Then, using the broken bottle, the Applicant stabbed the victim’s neck, chest, back and left arm.  The force was sufficient to penetrate the chest, causing pneumothorax and a collapsed lung.  The Applicant made three to four separate stabs at the chest whilst he held the victim by his hair.

6.Photographs of the scars show the stabs were directed to the left chest over the heart. The Applicant also punched and kicked his victim’s head, chest and back.  The attack lasted some 10 minutes.  The victim had only struggled in defence and did not fight back.  His pleas for the attack to stop were ignored.

7.The whole incident was witnessed by the friend who accompanied the Applicant, and who believed that they had gone there merely to pick up some property.  The Applicant defeated the friend’s attempt to stop him going back into the flat, and ignored the friend’s repeated pleas to stop the violence.

8.The pneumothorax was treated with emergency surgery.  The victim was in hospital for six days.  He bears the scars sustained in the attack.

9.The plea of guilty was entered after the victim and the friend had given evidence of the attack.  The broken bottle was described as a whisky bottle.  Its description is pertinent as it is some indication of the force needed and used to break it on the victim’s head.  That degree of force of itself causes us to regard this as a grave case, appreciating what is known about trauma to the head. 

10.Traumatic pneumothorax involving penetration of the chest wall can be life threatening. The sustained attack that brought it about, using the broken bottle as a stabbing weapon, was wicked.

11.The Applicant, now aged 22 years, is a man with seven previous court appearances involving robbery, common assault, criminal damage, assaulting a police officer, and the possession of dangerous drugs.

12.The Judge took a starting point of 3½ years’ imprisonment.  We take the view that it was quite inadequate for a sustained attack of this ferocity involving a defenceless victim who was set upon by an armed trespasser whilst in bed, and who was subjected to life‑threatening injuries.

13.A starting point of 6 or 7 years would not have been too high.

14.It follows that the Applicant fails to persuade us that his sentence could be described as manifestly excessive.  His complaint that the victim suffered no permanent physical disability is met by the comment that it was not for want of trying.  The admitted intent was to cause really serious harm.  The complaint that insufficient weight was given to what is described as strong provocation arising from finding his wife in bed with another man is met by the fact that she had moved out some four months before, and he had to break into her new home by night to discover his provocation.  The complaint that insufficient consideration was given to a lack of premeditation and the fact that he armed himself with the bottles once at the scene is met by the need to balance that against the sustained nature and duration of the attack.  The complaint that he deserved greater than the one-sixth discount which he was given for the late plea has no merit.  The claim for a 25 per cent discount when the incriminating witnesses had already given evidence is unsustainable.  The trial had proceeded to a point where the result was inevitable.  None of the well‑known factors that would justify a greater discount than one‑sixth applied by the time the plea was entered.

15.The application for leave to appeal is dismissed.

Ms Memi Ng Mee-wah, Senior Public Prosecutor of the Department of Justice, for the Respondent

Mr David Ma Wai-kwan, instructed by Bobby Tse & Co, assigned by the Director of Legal Aid, for the Applicant