HKSAR v. Jow Gannon Walter Sutter

CAC C 352/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 352 OF 2011

(ON APPEAL FROM HCCC NO. 429 OF 2010)

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BETWEEN

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Before: Hon Stock VP and Fok JA in Court

Dates of Hearing: 18 and 25 May 2012

Date of Judgment: 25 May 2012

Date of Handing Down Reasons for Judgment: 21 June 2012

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REASONS FOR JUDGMENT

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Hon Stock VP (giving the Reasons for Judgment of the Court):

Introduction

1.On 22 August 2011, the applicant was sentenced by Saw J to a total of 10 years’ imprisonment after he pleaded guilty to an offence of manslaughter and another of wounding with intent to cause grievous bodily harm. He sought leave to appeal sentence.  On 25 May 2012 we dismissed his application and said we would later provide reasons which we now do.

2.The indictment contained two counts: the first, that on 18 August 2010 at Kimberley Road, Tsim Sha Tsui, the applicant unlawfully and maliciously wounded Wong Wing-yiu with intent to do him grievous bodily harm; the second that on the same day and at the same place he murdered Cheung Kin-lung.

3.The applicant pleaded guilty to the count which alleged wounding with intent.  In relation to the murder count, he pleaded not guilty to murder but guilty to manslaughter on the basis of an unlawful and dangerous act.  The plea of guilty to manslaughter was accepted by the prosecution with the judge’s endorsement as to the propriety of that course in the circumstances of the case.

4.The judge recognised that it was unusual to articulate a starting point in cases of manslaughter but thought that in this particular case, given the fact of the second count, he ought to do so.  He took a starting point of 10 years’ imprisonment for the manslaughter and imposed a sentence for that offence of 6 years 8 months’ imprisonment to reflect the plea of guilty and the fact of genuine remorse.  For the offence of wounding with intent he took a starting point of 7 years’ imprisonment and, giving a discount for the plea of guilty and for remorse, imposed a sentence upon that count of 4 years 8 months’ imprisonment.  He ordered 3 years and 4 months imprisonment for the wounding offence to run consecutively to the sentence for the manslaughter offence, the remainder to run concurrently, making a total therefore of 10 years imprisonment.

5.The applicant was born in the United States in April 1982, so that at the date of the offences he was aged 28 years.  At the time of the offences, he was a teacher in a primary school in Hong Kong; a person of previous impeccable character described in a host of testimonials presented to the court below by fellow teachers and others as a compassionate, responsible, polite and helpful individual.  The offence was, in other words, said to be wholly out of character.

The facts

6.The judge had the benefit of extensive mitigation at the end of which he delivered himself of detailed and carefully crafted reasons for sentence.  The reasons delivered were lengthy; necessarily so because the factual background was complicated.  To explain the circumstances in which the offence was committed and the conduct of the applicant, we can do no better than to extract certain passages from the judge’s sentencing remarks:

“Sometime around 4 am on 18 August 2010, in Kimberley Road, in Tsim Sha Tsui, two young men were stabbed, one fatally and the other suffered life-threatening injuries.

Cheung Kin-lung, who was aged 24 … , died later that morning at the Queen Elizabeth Hospital. Wong Wing-yiu [Jeffrey Wong], who was aged 28, was also admitted to the Queen Elizabeth Hospital with stab wounds to the back and buttocks. His condition was critical. He required emergency surgery and was subsequently admitted to the intensive care unit. He was eventually released on 25 August of that year.

…

…, the So So Club is located on the 10th Floor of No. 1 Knutsford Terrace, in Tsim Sha Tsui. It is, as one would appreciate from its name, a nightclub. On 18 August 2010, the defendant, together with a group of his friends, went to that nightclub arriving just after midnight. Amongst that group was Wong Wing-yiu, … [Jeffrey Wong]. Another friend was named Jerry Lee … .

This group, together with others, remained until closing time just before 4 am, during which they engaged in the usual round of drinks, dice games and the like. The defendant had not previously met Jeffrey Wong, but it appears on that night they were chatting amiably. Jerry Lee described how towards the end of the evening the defendant produced from his pocket a folding knife which he showed to him. Jerry Lee, quite naturally, became very upset by this, swore at the defendant and told him to put the knife away.

In one of the three statements made by Lee, he told the police that the defendant had told him he had the knife for protection. In another statement he made no reference to this. The defendant, through his counsel, has said that this was not his reason for possessing the knife in the nightclub that night.

Mr Delaney told me that the defendant’s instructions were that the knife was an all-purpose folding knife, which he regularly used in his home for cutting fruit, vegetables, opening bottles and the like. On this night, he had inadvertently taken it with him and had in fact taken it from his pocket for no other purpose but to show it to Jerry Lee. Whilst I may have some reservations about that account, the fact remains that he was in possession of a sharp knife on that night in a nightclub. This much is evidenced by the fact that when he was told to put it away by Jerry Lee, he accidentally cut Jerry Lee’s finger.

The evidence … shows that that evening there were at the So So Club two expatriate males, one of whom was identified by the name of James Scarlett. That evidence suggests that towards the end of the evening Scarlett and the other male were, in all probability, affected by alcohol. In the case of Scarlett, there is evidence that he had behaved aggressively to others not in the defendant’s group prior to closing time.

As the patrons left the nightclub shortly before 4 am using the lift to the ground floor, the defendant and some of his group found themselves in the lift with Scarlett and the other expatriate male. There was a verbal confrontation. After each group alighted from the lift at the ground floor. However, Scarlett and his group left first. The defendant, no doubt himself emboldened by the consumption of alcohol, swore at Scarlett as they left to walk down the slope of Knutsford Terrace. Consequentially, Scarlett ran back up to the defendant and both began pushing one another. They were sensibly pulled apart by members of their respective groups and once more appeared to be going their respective ways.

By this time, both groups were in the vicinity of Kimberley Road; one heading toward Nathan Road, that is the defendant’s group, one heading towards Observatory Road, that is Scarlett’s group. For reasons which are not apparent, the defendant then brought out and showed to Jeffrey Wong the knife he had shown Jerry Lee in the nightclub earlier than evening.

In the Admitted Facts it is said that the defendant told Jeffrey Wong, I quote, ‘I will stab at him if he keeps on quarrelling’, presumably a reference to Scarlett. The defendant does not recall using these words but accepts that he had then indicated that the knife could be a factor in any further confrontations, either to scare or intimidate. He was not clear about this. Nothing turns on this because, as will be seen shortly, after this, Scarlett and his group again confronted the defendant and his group.

The knife was used by the defendant in this confrontation to devastating effect. This is what is said in paragraph 35 of the Admitted Facts, and I quote:

‘The defendant, in the chaotic situation and faced again with the approaching group, produced his knife and unfolded the blade. The defendant, with his knife in his hand, waved it wildly in the direction of the approaching Scarlett and his group. Again, there was some pushing and shoving and arm-throwing between the parties. The defendant brandished his knife in close proximity to the people who had rapidly approached in the ensuing melee. The defendant stabbed the deceased in the stomach area and to his left hand. The pathologist considers that wound to be a defensive injury incurred whilst attempting to ward off the knife.’

It is upon this basis that the defendant offered to plead guilty to manslaughter by reason of an unlawful and dangerous act; namely, the brandishing of the knife at the approaching group. Integral to this is the proposition advanced on the defendant’s behalf and accepted by the prosecution that there was insufficient evidence to establish that he had intentionally plunged the knife into the deceased’s stomach, but that he did stab him.

No such considerations apply to the section 17 wounding charge. The latter part of paragraph 35 of the Admitted Facts reads, and I quote:

‘Shortly after stabbing the deceased, the defendant, with the intent alleged in the 1st count, used his knife to stab in front of him the nearby Jeffrey Wong.’

That intent, for the avoidance of doubt, was to do grievous bodily harm to Jeffrey Wong, one of those with whom he had earlier been socialising. … .

After the deceased and Jeffrey Wong had received their respective stab wounds, the two groups again parted. The defendant and Jerry Lee helped Jeffrey Wong into a taxi, initially intending to go to Mongkok. But upon realising that Jeffrey Wong was bleeding heavily, the driver was instructed to go to the Queen Elizabeth Hospital quickly. In the meantime, an ambulance had been called to attend to the deceased. He was also conveyed to the Queen Elizabeth Hospital. Both Jeffrey Wong and the deceased underwent emergency surgery. Jeffrey Wong survived and the deceased did not.

Both the deceased and Jeffrey Wong sustained very serious injuries. In the case of the deceased, apart from the deep cut wound to his hand, he had one stab wound to the stomach. That wound was 6 centimetres in length and penetrated to a depth of 12 centimetres. This caused massive bleeding as it cut into his liver, pancreas and severed three major blood vessels. Despite the emergency surgery, he died at about 11 am that day.

In the case of Jeffrey Wong, he, like the deceased, was admitted to Queen Elizabeth Hospital in a critical condition. He had stab wounds to his back and buttocks. Two of the stab wounds to his back had lacerated his liver. He was, however, eventually discharged on 25 August 2010.

I am today advised by reference to a witness statement prepared this afternoon that his present condition is such that whilst he has not made a complete recovery from the injuries he sustained, he has returned to his work as a hairstylist. He has ongoing difficulties being unable to run or carry heavy objects. He will have a further follow-up examination at the end of this month. He indicates that apart from the above and an issue with respect to having to urinate more frequently, he has no major sufferings as a consequence of his injuries, albeit that his capacity for employment has, in the time elapsed, been reduced.

Returning to the situation of the deceased, a post-mortem examination determined that he had died from profuse bleeding.  A toxicology analysis revealed in the presence of his blood a drug named as nimetazepam.  That is a drug which is not uncommonly abused by young persons as a recreational drug.”

7.The applicant was arrested 36 hours after the events in question.  He was alerted to the fact that the police wished to speak to him and upon his arrest he denied killing anybody but otherwise made no statement.  It is a fact that between his departure from the Queen Elizabeth Hospital and the time of his arrest he disposed of the knife and washed his clothing.

The pleas

8.The basis upon which the plea to manslaughter was tendered was that at the material time Cheung, the young man who was killed, was part of the group to which Scarlett belonged.  It is unclear what Cheung’s precise role was – whether seeking to pull persons away or to take part in the aggression – but, be that as it may, it seems that he was part of the group that rushed towards the applicant and his friends; and the suggestion was made in mitigation that the wielding of the knife and the stabbing of it in the direction of the advancing group was motivated by apprehension.  It was implicit in the plea and in the mitigation in support that there was at that stage no intention to inflict serious bodily harm.  Precisely how Cheung came by his fatal injury – whether by running onto the knife or as a result of a thrust of it in the direction of the group – is also not clear but the depth of the wound was dramatic.

9.As for the wounding with intent, it is clear that Jeffrey Wong was part of the applicant’s group so it may at first glance seem strange that there was a plea of guilty of wounding with intent to cause grievous bodily harm.  But the matter was put and correctly accepted on the basis of transferred malice, meaning that the applicant intentionally stabbed Jeffrey Wong in the belief at that particular moment that Wong was one of Scarlett’s group.

Matters noted

10.It is noteworthy – and the judge expressly noted it – that there was no suggestion that any person other than the applicant was armed with a weapon.  It is noteworthy as well that the applicant himself suffered no injuries.

11.The judge referred to a letter which had been written to him by the deceased’s sister, a copy of which we have, which brings to life some of the awful anguish suffered by her parents and herself in consequence of her brother’s death.

12.We were presented with up-to-date reports about Wong’s condition.  His kidney has recovered from the effects of the stabbing but he cannot stand for a long time without taking a rest and he is unable at present to carry heavy objects.  The wound scars are large and sensitivity in the area of the wounds is affected. 

13.The judge remarked that Cheung’s death was no accidental death nor a case of self-defence and he noted the conscious decision to take up the knife and the fact that the applicant stabbed Jeffrey Wong not once but three times with devastating consequences, it being a matter of luck that that attack did not result in a second fatality.

14.As for mitigation, the judge noted that all of the information provided to him emphasised that the applicant’s conduct was entirely out of character; that he had been a dedicated responsible teacher, respected and admired by his peers and pupils alike.  The judge was not able to say why the applicant took the knife with him that night but emphasised that even if he took the knife with him in error from his apartment – a contention the judge viewed with some scepticism, but upon which basis he was prepared to proceed – the fact of the matter was that the applicant gave notice, once Scarlett’s aggression had manifested itself, that he might use it if necessary and that he in fact opened it and eventually used it.

15.He accepted that the applicant was not the initial aggressor as events unfolded that evening and noted that he had pleaded guilty.

16.With these multiple factors in mind, the judge imposed the sentences which are now the subject of this application.

The submissions

17.The applicant was unrepresented before us.  He advanced detailed submissions in writing and orally and he presented his submissions intelligently and in a measured manner.  He accepted that he was seriously at fault in using the knife in question and remains remorseful but feels aggrieved at the totality.  He expressed as well a sense of grievance that Scarlett and his compatriot friend had left the jurisdiction not long after the incident and that none of Scarlett’s group have been brought to book in connection with their aggressive conduct.  That is an understandable sentiment but the applicant himself recognised that he nonetheless falls to be sentenced for his own criminal conduct.

18.The applicant did not take issue with the starting points for the individual offences or the resulting sentences for each; but he contended that the judge erred in principle in not ordering the sentences to run concurrently.  This was, so the applicant contended, a single transaction, a single lapse of judgment and he referred us to a number of cases in which two offences committed in the course of one fracas have resulted in concurrent sentences.

19.In addition, he attacked the resulting totality and in this regard he emphasised:

(1)   that Scarlett and his group had been behaving aggressively to others that night;

(2)   that he, the applicant, on more than one occasion had held his small group back – for example, when Scarlett and his friend or friends left the lift;

(3)   that when he wielded the knife, he was doing so in response to aggression; and

(4)   that several members of Scarlett’s group – although not Scarlett himself – had convictions for offences of violence.

20.The suggestion that the sentences should be ordered to run concurrently was advanced to the judge in the court below.  He did not agree, saying that whilst each offence was committed within a matter of seconds of the other, there were two victims and the injuries sustained in the wounding case were very serious indeed; the intent of the applicant in respect of each offence was different; and the applicant had the opportunity to go no further after the first stabbing, a contention which the applicant respectfully categorised as unrealistic.

Analysis

21.In his oral submissions, the applicant urged upon us the view that the offences constituted a single lapse of judgment on his part, a single transaction, a single reaction by him and that it was therefore was unjust for the sentences to run other than concurrently.  

22.In our judgment, the sentencing judge’s approach in this regard was, on the facts of this case, unimpeachable.

23.In HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690, the Court explained that the single transaction rule was no more than a practical rule of thumb and that, in cases of more than one offence for which sentence fell to be passed on the same occasion, the true test was whether the second or further offences added to the culpability of the first.  It would be difficult on the facts of this particular case to justify a view that the subsequent deliberate and serious stabbing of Wong did not add to the culpability occasioned by that piece of conduct which resulted in the death of Cheung.  Cheung came by his fatal injury in an act which, as exemplified by the plea of guilty of manslaughter by an unlawful and dangerous act, was different in nature (as well as to victim) from the thrusts – no less than three of them – at a different victim offered with an intent different from that engaged in the first act.  This will no doubt strike the applicant as embracing an artificiality because, to his mind, the events took place in the course of a short space of time during one melee.  But there is in truth no artificiality in giving effect in this way to the overall culpability.  An alternative, if one were to approach his conduct and its effect as one offence and give effect to the culpability thus disclosed – albeit two separate acts, with separate intents and serious separate effects – would be to adopt a global starting point higher than that adopted for the individual offences.  But that alternative approach is contrary to practice and to principle; for it is well-established that each sentence must reflect the culpability of each offence and the device of consecutive or concurrent sentences, or a mix of the two, is utilised to reflect overall culpability.

24.The cases upon which the applicant relied can be distinguished.  One case upon which the applicant relied is a case in which a comment was made by the court that concurrent sentences might be appropriate where a person swinging a chair in the course of a violent argument struck two people in a short space of time; and the applicant said that that was analogous to his case.  But the answer is that the Court was throwing out an example with no detail but, depending on the detail and approaching sentencing, as we do, as an art rather than a science, one can well see how a court might readily give effect to the justice of such a case by ordering concurrent sentences.  Yet it is noteworthy that the case at issue (not the example) engaged two charges: the first was a charge of wounding with intent – a “glassing” of the victim – and the second (common assault) occurred when the victim’s friend tried to push the applicant away and the applicant kicked him in the ribs: the sentences were ordered to run partially consecutive, a course which the Court of Appeal approved.

25.The question which we next addressed was whether the totality was manifestly excessive.  We concluded that it was not.  We acknowledge, as did the judge, that the applicant acted out of character and we acknowledge as well, as did the judge, that he was not the initial aggressor.  Yet it is a very serious feature of this offence that the applicant had on him in a public place a knife and that he had twice prior to its use taken it out: once to show his friend in the club and then, before the final and fatal melee, to indicate that if necessary he would at least flourish it.  The judge expressed reservation – not surprisingly – about the suggestion that the applicant had not knowingly taken it out with him that night but the judge correctly recognised the limited effect of that contention: it is one thing to be careless enough to a leave a knife in one’s pocket on going out to a public place but, assuming one to be sufficiently responsible to know that one should not have it in a public place, one might expect that responsibility to result in conduct different from the applicant’s conduct upon discovering it on his person.  It is strange in such circumstances to take it out in a public place and show it and more strange still to take it out and open it in a situation which might very well, but has not yet, developed into violence or repeated violence.  The result of this culpable conduct is that one young person has died and another was gravely injured, from which injuries he still suffers effects.  This is not to ignore the unacceptable conduct of members of the other group but it is, rather, to recognise that the applicant was the only one that night with a weapon, a sharp and dangerous one at that, which he was prepared to and did use with grave consequences.  It is of course sad and troubling indeed to see a person of hitherto impeccable character imprisoned, and imprisoned for a long time, and an exercise in sentencing in such a case is truly difficult – but that is the unfortunate result that must sometimes flow from short-lived but grossly irresponsible behaviour which occasions such tragic consequences.  The question which is to be asked and answered in these cases is whether the overall sentence imposed by the sentencing judge was manifestly excessive and we concluded that it was not.

26.For these reasons, we dismissed the application.

Miss Vinci Lam, SPP of the Department of Justice, for the Respondent

The Applicant in person