HKSAR v. Chamadia Akash Kanji

CACC 58/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO CACC 58 OF 2011

(ON APPEAL FROM DCCC 1300 OF 2010)

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BETWEEN

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Before: Hon Cheung JA, Beeson and Barnes JJ in Court

Date of Hearing: 21 February 2012

Date of Judgment: 21 February 2012

Date of Handing Down Reasons for Judgment: 28 February 2012

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REASONS FOR JUDGMENT

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Hon Beeson J (giving the Reasons for Judgment of the court):

1.On 21 February 2012 we dismissed the applicant’s appeal against sentence and advised that we would give our reasons at a later date. These are our reasons.

2.On 4 January 2011, the applicant pleaded guilty to one count of Wounding with Intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap 212 and on 18 January 2011, was sentenced by HH Judge Geiser to 28 months’ imprisonment.  The judge took into account the submissions of counsel and also the content of a background report.  He adopted a starting point of 3½ years’ imprisonment and gave the applicant the full one-third discount for his plea of guilty.  The applicant was ordered to pay $3,000 compensation to the victim. 

FACTS OF THE CASE

3.The applicant, a yoga teacher, formed a relationship with one of his students, PW1.  The relationship lasted from February 2010 until April 2010 during which time PW1 became pregnant with the applicant’s child.  From April 2010 the applicant tried to persuade PW1 to renew their relationship without success.  The applicant complained about PW1’s decision to resume seeing a former boyfriend, PW2, the victim of the charge. 

4.On 25 August 2010 at about 19:45 hrs, PW1 and PW2 together with PW3, the victim’s domestic helper, were walking dogs outside the Excelsior Plaza in Causeway Bay.  They met the applicant who asked PW1 to leave PW2.  PW1 refused and the applicant went away.  A short time later he returned with a plastic bag in his hands. He made several attempts to speak to PW1, but was rebuffed.  He spoke to PW3, saying, “OK.  Walk behind us.  So you can see what I’m going to do.”  PW3 saw the applicant take a hammer from his plastic bag.  He was about 3 ft behind PW2 and struck the back of PW2’s head once with his hammer.  The hammer broke into two parts and fell to the ground.  PW2’s head began to bleed.  The applicant was arrested.  He admitted under caution attacking the victim with the hammer.

5.In a subsequent Video Recorded Interview (VRI), the applicant stated that he was angry when he saw PW1 together with the victim, and he admitted having a dispute in the street.  He said he decided to buy a hammer for $25 and to attack the victim with it.  He explained that he was jealous of the victim who, he believed, was the reason PW1 had broken up with him.  The applicant said that he committed the offence acting on impulse. 

6.The victim suffered two lacerations 2cm and 3 cm long, respectively, over the occipital region of his scalp.  There was associated swelling.  Five stitches were required and the victim was granted 6 days’ sick leave.  The incident was captured on CCTV footage. 

7.The hammer was seized and analysed by the Government Chemist.  The victim’s DNA was found only on the sharp end of the hammer.  The Forensic Pathologist said the hammer could have caused a fracture to the victim’s skull with a single strike and that a strike in the place where the victim suffered his injuries could have been fatal, although the possibility of death was very low. 

APPLICATION FOR LEAVE TO APPEAL

8.The applicant sought leave to appeal against his sentence before Hartmann JA on 16 June 2011.  The applicant claimed that he had been provoked by the victim, but that the court had not been told of the provocation and he had not been given mitigatory credit on that basis.  The judge adjourned the application to enable the police to check the VRI for any mention of provocation.  If provocation was mentioned that portion of the court record was to be transcribed.  Secondly, the judge called for the case file to be examined to see if any document put before the trial judge referred to provocation. 

9.At the resumed hearing on 30 September 2011, a transcribed portion of the proceedings was put before the court.  No details of any provocation were contained either in the transcript, or in any documents put before the judge. 

10.Given the material before him, Judge Geiser sentenced on the basis that the applicant was in a jealous state at the time of the attack.  However, the applicant contended that he was never jealous of the victim, nor at the time was he experiencing any sense of helplessness or loss as the judge said in his Reasons for Sentence. 

11.The applicant advanced several grounds:

(1) he was never informed by his counsel that he was being charged with the more serious offence of wounding with intent rather than assault. If the charge had been explained properly he may not have entered his plea of guilty;

(2) his only reason for attacking the victim as he did was because he had been provoked, having been made the subject of racial slurs and other insults.

12.Nothing about such provocation appeared in the second Amended Summary of Facts dated 3 January 2011.  The applicant said that he placed trust in his counsel and was simply not aware of what counsel was saying in court; he complained that he was denied the opportunity to speak directly to the judge. In essence, the applicant alleged that a fundamental miscarriage of justice had occurred and that the miscarriage was caused by the incompetence of his counsel.  

13.Hartmann JA was puzzled as to how the plea and sentence process before Judge Geiser could have become so distorted.  Because very serious allegations had been made against the defence counsel, he took the view that this matter should be considered by a full court.  It was on that basis that leave to appeal was granted.

14.Hartmann JA directed that a letter be sent to counsel, Mr Adonis Cheung, asking him to file an affidavit about his conduct of the case. 

MANIFESTLY EXCESSIVE SENTENCE

15.The applicant attributed his “manifestly excessive sentence” to the incompetence of his counsel, who had been appointed by the Legal Aid Department (LAD).  He alleged that Mr Cheung had told him that he should not rectify two factual errors in the prosecution’s Summary of Facts.  This led to the applicant being misrepresented as to facts used by the judge as a basis for sentence. 

16.In particular, the applicant alleged that Mr Cheung advised him not to rectify the errors because:

“(i) inclusion of the victim’s provocation that precipitated the offence would be seen as retaliation and would do more harm than good and

(ii) the fact that the applicant had committed the offence in jealous reaction to his girlfriend having resumed a romantic relationship with the victim was irrelevant.”

17.In the absence of such correction the trial judge reached the wrong conclusion and passed sentence without taking provocation into account in mitigation. 

LANGUAGE

18.The applicant had been dealt with throughout in English.  He speaks fluent English and in his Legal Aid questionnaire completed prior to his plea, he indicated that he did not require an interpreter, although he asked that a Gujarati interpreter be in court for any trial.  The court proceedings were held in English.  The appearances before Hartmann JA were conducted by the applicant in person and in English. 

19.In a letter to the court dated 24 November 2011 the applicant claimed that he needed assistance with what he referred to as “high class vocabulary” asopposed to more demotic forms of English.  He had said in an earlier letter dated 3 November 2011 that he did not understand Indian language interpreters.

20.Judging from the material on file, it is clear that this applicant did not need an interpreter.  If he had difficulty understanding certain words, he could have sought the court’s assistance, or he could have requested the assistance of an Indian language interpreter, if needed.  Having read the transcripts of his exchanges with Hartmann JA, we believe that the applicant was well able to understand what was going on and how best to make his wishes, ideas and submissions clear to the court in English. 

DEFENCE COUNSEL’S AFFIRMATION

21.Mr Cheung filed an affirmation on 7 October 2011, setting out a detailed history of the case and his dealings with the applicant.  Instructions dated 28 December 2010 had been sent to counsel advising that the case was fixed for plea and sentence on 4 January 2011.  Counsel was provided with a questionnaire of the LAD [CKWA-3] which contained information from the applicant obtained at an interview on 13 December 2010.  The applicant had signed [page 2 para 16] the questionnaire:

“I decide to plea[d] guilty to the present defence and I fully understand English. No interpreter is required for my P & S. No bail application for today. [signed] 17.12.10”

22.The questionnaire records [para 17] that the applicant said that he committed the offence with no intention, but later he changed that instruction.  His solicitor instructed counsel from the outset that the applicant would plead guilty to wounding with intent.  Counsel believed that the applicant understood that charge, but he also explained it to his client.  On 29 December 2010, the day after receiving instructions, Mr Cheung attended Lai Chi Kok Reception Centre with Ms Chan his pupil and with Mr Karbhari, the solicitor appointed by LAD.  It was his personal practice, regardless of what LAD staff or his solicitor had explained, to go through the charge, or charges, personally with a client and examine the elements of each charge. 

23.Counsel specifically told the applicant that if he had not intended to wound he should not plead guilty and he (counsel) would not accept such a plea.  The applicant confirmed his understanding of the charge, said that he would plead guilty and admitted the first Amended Summary of Facts, dated 21 December 2010.  The applicant accepted that he had used the hammer to wound the victim, but told counsel that he could not remember whether he told the police that “he bought the hammer to injure the victim” in the VRI which, he agreed, was given voluntarily. 

24.The charge sheet and the first Amended Summary of Facts were signed by the applicant.  Again Mr Karbhari, Ms Chan and Mr Cheung saw the applicant sign confirming the plea and the facts.  Later the VRI was reviewed by counsel, as was the written record of his initial admission under caution.  That showed that the applicant had told the police in the VRI that he had bought the hammer to injure the victim.  The relevant part of the transcript was exhibited to Mr Cheung’s affirmation [CKWA-6]. 

25.The applicant in a later VRI changed his story and claimed that he did not buy the hammer to wound the victim but had bought it for doing work in hisflat.  But he did say in his VRI from the beginning that he bought the hammer to injure the victim.  Counsel stated [para 18]:

“Our exercise to review the VRI and our contemporaneous act to prepare the extract could prove that at the time when we were confirming the Applicant’s instruction we did specifically look into the issue of intent and the Applicant instructed and signed to confirm the fact that he would plead guilty to the charge of wounding the victim with intent.”

26.The written Record of Interview recorded the applicant saying in response to the caution: “I’ve attacked Mr Edward Kong with a small hammer.”  That response was not exactly the same as was stated in the first Amended Summary of Facts, so Mr Cheung discussed it with the prosecutor and in consequence the last sentence of para 3 was altered as in the second Amended Summary of Facts dated 3 January 2011.  

27.On plea day, 4 January 2011, before court, counsel together with his solicitor and his pupil went to see the applicant to explain the second Amended Summary of Facts.  The applicant confirmed that he intended to plead to the wounding with intent charge and signified his agreement to the second Amended Summary of Facts.   The applicant wrote on those facts: “I understood and I admit the above facts.”  He signed the document, which was dated 4 January 2011.

28.Counsel denied any failure to explain the charge and pointed out the many occasions when the applicant had the charge explained and confirmed he maintained his plea.  On arrest the applicant was told at the police station that he was charged with the offence of wounding with intent.  Counsel believed that the police and, later, the Magistracy officers would have read the charge to the applicant and asked whether he understood it.  A copy of the police charge sheet and the information were given to the defence in the Magistracy.

29.The charge would have been further explained on transfer from the Magistracy to the District Court.  Finally, the charge was put to the applicant on the day of plea and he pleaded guilty after hearing the particulars of the charge.  He admitted the intention to wound.  At no time did the applicant raise any query, nor did he say that he did not know what was going on in court, or that he could not hear, or understand, what was said. 

30.Counsel pointed out that the second Amended Summary of Facts showed that the applicant’s explanation to police was advanced on the basis of jealousy of the victim and his relationship with PW1.  He admitted that he had had a dispute with the victim, when the victim intervened to stop the applicant speaking to PW1.  Counsel said that it was not true that the applicant had said that the only reason for the attack was because he was provoked by the victim who humiliated him and made racial slurs against him.

31.A letter written by the applicant to the victim was produced to the court in mitigation.  The applicant wrote:

“I was very angry at your reactions and till 25^th August 2010 that anger gradually turned to hatred, jealousy and extremely negative ways which I don’t hold you responsible for because I was deceived by my own negative thinking and in time I understood, especially being in prison.”

The letter was exhibited to Mr Cheung’s affirmation [CKWA-10].

32.This letter was to show the judge that the applicant was remorseful and that he apologised to the victim.  The contents of that letter are wholly in line with the facts admitted by the applicant. 

33.Finally, counsel confirmed that his erstwhile client speaks fluent English and that they had communicated throughout in English without difficulty.  After the applicant was sentenced, Mr Cheung followed his usual practice and spoke to the applicant in the dock.  He explained that the sentence was lenient and that in his view there were no grounds for an appeal.  Counsel asked if the applicant had any questions and the applicant left the court only after counsel was satisfied that his client understood the proceedings and did not have any problems arising therefrom. 

SENTENCE

34.In his Reasons for Sentence, the judge noted that the blow which injured the victim must have been struck with some force because the hammer broke into two parts.  He considered it was a wicked attack and it was no thanks to the applicant that the victim was not more severely injured.  It was fortunate that the victim’s skull was not fractured.  The victim had completely recovered from the effects of the attack and was prepared to accept compensation fixed by the court.  In conclusion, the judge said that he was satisfied that the offence was completely out of character.  He did not consider the applicant was a violent person and noted his clear record.  The judge continued;

“… This defence was precipitated due to a feeling of jealousy and helplessness on your part due to [PW1] resuming her relationship with her old boyfriend. That does not, of course, excuse what I have already said is a wicked attack, striking a man from behind on the head with a hammer.

8. In sentencing you I take all that has been said on your behalf by way of mitigation, but it is your plea of guilty which reflects your genuine sense of remorse that counts the most.”

He went on to announce sentence.

35.Those mitigatory factors coincided with the admissions made by the applicant.  We are satisfied from the court papers and from the detailed affirmation filed by Mr Cheung that this applicant knew exactly what he was doing when he entered his plea of guilty, and have no doubt that he understood what was being said and knew the implications of the advice given to him.

36.We note before the application for leave to appeal was filed, that PW1 resumed her role as his girlfriend/wife, and from letters that she has sent to the court she is articulate and understands English well.  If by some mischance the applicant’s position had been misstated or misquoted, whether in the second Amended Summary of Facts or elsewhere, the court has no doubt that PW1 would have informed the court, or counsel, or the solicitor.

37.The letters from PW1 after plea and sentence support the allegations of provocation, although no such allegation was made by PW1 at the time of the incident, or in court.  There is no obvious reason why PW1 would not have told the police or counsel about the alleged provocation that she described in her letters, if such had occurred. 

38.We are sure that if counsel had been told of provocative acts or racial slurs directed by the victim to the applicant, those matters would have been put before the court.  There is no reason suggested why the police would have failed to record complaints of provocation, or racial insults, if indeed those matters had been raised by the applicant. 

39.This applicant is trying to change the facts on the basis of which he pleaded guilty.  The court can only surmise that he is doing so because he felt with hindsight that he was treated too harshly on sentence and, having reconciled with PW1, wishes an earlier release.  However, having considered the sentence, in the light of the facts before the court, it appears that the sentence may be on the lighter side of the scale.  Clearly counsel thought that too when he advised there were no grounds for appeal. 

40.Finally, we wish to make it clear that no valid complaint can be sustained about the way counsel or the solicitor handled this case.  For that reason Mr Cheung was advised he need not attend the court for this hearing.  He had supplied the court with a lengthy affirmation supported by relevant exhibits which made it quite clear that he had acted properly in the interests of the applicant at all times. 

41.For these reasons we dismissed the appeal.

Mr Martin Hui, SADPP of the Department of Justice, for the Respondent

The applicant in person