HKSAR v. Wong Luk Sau

[English Translation – 英譯本]
CACC 2/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 2 OF 2012

(ON APPEAL FROM DCCC NO. 1035 OF 2011)

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BETWEEN

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Coram: Hon Tang VP and Hon Barnes J in Court

Date of Hearing: 7 September 2012

Date of Judgment: 7 September 2012

Date of Reasons for Judgment: 13 September 2012

REASONS FOR JUDGMENT

Hon Barnes J (giving the reasons for judgment of the Court):

1.The applicant was charged with one count of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212 Laws of Hong Kong.  The applicant pleaded not guilty. He was convicted after trial before Deputy District Judge Sham and was sentenced to 3 years’ imprisonment.  He initially applied for leave to appeal both conviction and sentence.  Subsequently he abandoned the appeal against conviction and sought leave to appeal the sentence only.

2.After the hearing, we granted the applicant leave to appeal and, treating the application as the appeal proper, we allowed the appeal, set aside the 3 years’ imprisonment, and substituted therefor a term of 2 years and 3 months.  Our reasons are set out below.

Facts

3.The facts as found by the Deputy Judge were as follows (page 19 of the appeal bundle):

“2. The facts show that both the defendant and the victim Cheung Kwun-wo (78 years old) were residents of Chung On Estate and they knew each other. Prior to the wounding incident, they had had a quarrel over a chess game. On the day of the offence, i.e. 23 June 2011, Mr. Cheung was in the park, where the offence was committed, watching people playing chess. The defendant went up to Mr. Cheung and asked him to pay compensation for what happened the day before yesterday[1]. Because of that, an altercation broke out between them again. The defendant took out a knife. When the chess players saw that, they told Mr. Cheung to run away. Mr. Cheung did run, but after he ran for 60 to 70 metres, he was caught up by the defendant. The defendant stabbed him, injuring the area under the left armpit. The defendant continued to attack him with the knife. As he tried to fend off the attack with his left hand, his left thumb and left index finger were injured. Then the defendant ran away and the police were called.

3. Mr. Cheung was sent to hospital. The medical report said that there was a stab wound, 1.5 cm long, under his left armpit near the chest, and that there were also injuries on his left upper limb.” (explanation given by the court)

Applicant’s background and mitigation submissions

4.The Deputy Judge set out the applicant’s background and mitigation submissions as follows (page 20 of the appeal bundle):

“4. The defendant is 72 years old. He has one conviction record (1988, one conviction for gambling). As that conviction was quite some time ago, I will treat him as a person of clear record when I consider the sentence. The defendant is a retiree. Before his retirement, he worked as a mini-bus driver. He is married. He has two sons and one daughter. As far as his health is concerned, he received a coronary bypass operation in 2009. In addition, he is suffering from a variety of ailments and illnesses, such as shortness of breath.

By way of mitigation, the defence has submitted a number of letters for the court’s consideration, including letters from Legislative Councillor Mr. Chan Hak-keung [sic]; Madam Wong, Chairwoman of the Mutual Aid Committee of Chung On Estate; and the defendant’s children.  In sum, they have made very positive comments on  the defendant, describing him as easy-going, always ready to help others and eager to do voluntary social work, and stating their belief that the defendant’s commission of the present offence was out of his character.”

Reasons for sentence

5.The Deputy Judge cited the authorities Hau Ping Chuen2 and Tse Hok Lam3[transliteration of 謝學林] and pointed out that this kind of offence called for severe punishment, with the usual sentence being imprisonment for 3 to 12 years.  The Deputy Judge went on to say (page 21 of the appeal bundle):

“8. I consider that there are aggravating features in the present case. Before the wounding incident occurred, the defendant had a quarrel with Mr. Cheung over a chess game, following which he nursed a grievance against Mr. Cheung. It is obvious that the attack was premeditated, because on the day of the offence the defendant brought along knives for the purpose of attacking another person.

9. On the basis of the admitted evidence, I believe that the defendant carried two knives with him at the material time, and that the knife produced at trial was not the one used in the wounding. However, taking into account the overall circumstances of the defendant’s attack on the victim, that knife would, I believe, at least have been as sharp as the one produced in court. In other words, I believe it was a sharp and lethal weapon.

10. I also consider there were serious features in the circumstances of the offence. The defendant is an elderly person but so is the victim, who is 78 years old. The facts as found by the court were that when the defendant took out the knife, the victim actually chose to flee, but the defendant refused to let it go at that. He chased the victim with the knife in his hand. When he caught up with the victim, he attacked him at once and inflicted on him the injuries he suffered.

11. An elderly person who is being chased after for 60 to 70 metres may fall or tumble at any moment during the chase. For an elderly person, a fall or tumble can entail serious consequences. Worse still, when the defendant caught up with the victim, he attacked him with a knife, pulling no punches. That the victim neither suffered very serious injuries nor was troubled by any sequelae is a matter of sheer luck,not because the defendant exercised any restraint on his attack.

…

14. On the day in question the defendant attacked an elderly person with a lethal weapon he brought along. What he did was deliberate and premeditated. Such violent conduct may lead to serious consequences and is never tolerated by the courts.

15. After consideration, I adopt 3½ years’ imprisonment as the starting point.  In light of the fact that the defendant is in his 70s, that he has only one previous conviction for a relatively minor gambling offence, and taking into account everything said in his favour by those who wrote the letters of mitigation for him, I reduce the term by 6 months.  To conclude, the defendant is sentenced to imprisonment for 3 years.”

Ground of appeal

6.The ground of appeal put forward by Mr. Hu, Counsel for the applicant, was essentially that the Deputy Judge had not adequately considered the victim’s injuries and the mitigating circumstances in favour of the applicant, as a result of which he imposed the sentence of 3 years’ imprisonment which was (the applicant submitted) manifestly excessive.

(I) The injuries

7.Mr. Hu cited the English case of R v Nottingham Crown Court, ex parte DPP4and submitted that, in considering the gravity of the case in question and the appropriate sentence, the court could take into account the injuries suffered by the victim.

8.Mr. Hu referred to a number of decided cases involving the offence of wounding with intent5 to support his contention that, in the circumstances of the present case, 3 years’ imprisonment was manifestly excessive.

9.Mr. Hu placed particular reliance on the case of Yeung Kam Kwai6, because the appellant and the victim in that case were aged 69 and 76 respectively at the time of the offence, and their ages were close to those of the applicant and the victim in the present case.  Mr. Hu submitted that the injuries suffered by the victim in that case were more serious than those suffered by the victim in the present case.  In the end, the Court of Appeal imposed a sentence which enabled the appellant, who had served 9½ months of the original sentence, to be immediately released.  Mr. Hu submitted therefore that the Deputy Judge erred in adopting 3½ years as the starting point.

(II) Mitigating factors

10.Mr. Hu stressed that at the time of the offence the applicant was an elderly person aged 72 and had no criminal record except one conviction for illegal gambling, and that the victim had done something which provoked the applicant.  For these reasons, Mr. Hu submitted that although the Deputy Judge correctly reduced the term of imprisonment by 6 months, the starting point of 3½ years was still too high.

11.Mr. Hu complained that the Deputy Judge failed to have sufficient regard to the applicant’s age and to the fact that he had no record of violent behaviour, that the victim had acted in a way which provoked him, and that the attack was an isolated incident and the result of a momentary impulse.  For these reasons, Mr. Hu submitted that the sentence of 3 years’ imprisonment was manifestly excessive.

Respondent’s reply

12.The respondent’s position, as explained by Mr. Kuan, Senior Public Prosecutor for the respondent, is that the applicant wounded the victim with a knife at the slightest provocation, and that such conduct warranted a deterrent sentence: see Hung Kar Chun7.

13.Mr. Kuan conceded that all the following were mitigating factors: at the time of the offence the applicant was 72 years old; he had undergone a heart operation; the attack did not result in serious injuries to the victim’s heart; the laceration did not penetrate into the thoracic cavity; and there was no pneumothorax or pleural effusion. However, he submitted that by comparison there were even more aggravating factors:

(1) The incident was induced by a quarrel over a chess game.

(2) When the applicant went to the scene with two knives on him, three days had already elapsed since the quarrel8. The knife seized by the police was lethal, as was the other knife with which the applicant attacked the victim.

(3) The applicant concealed the knives in a newspaper.  This showed that he was coolheaded and his acts were premeditated.

(4) When the applicant took out a knife, the 78-year-old victim chose to run away, but the applicant did not let him go and chased him for 60 to 70 metres.

(5) The applicant did not stop the attack even after he stabbed the victim under his armpit.  The victim tried to snatch the knife but failed, and his left hand was also injured.

(6) The victim ran inside the office of a District Councillor and stayed there and hence managed to free himself from the applicant, but the applicant remained outside the office and shouted abuses.

(7) The applicant pleaded not guilty and put the blame on the victim.

14.Mr. Kuan submitted that the applicant mounted the attack, which was premeditated, when he was coolheaded.  He submitted that the victim did not suffer more serious injuries not because the applicant showed mercy towards him, but because of sheer luck.  He also contended that the victim’s injuries were one of the sentencing considerations but not the sole sentencing factor.

15.Mr. Kuan averred that in the circumstances of the present case, the starting point of 3½ years was by no means manifestly excessive.  In view of the applicant’s complete lack of remorse and taking into account his age and physical condition, the Deputy Judge adopted what could be described as a lenient approach by reducing the term of imprisonment by 6 months.  Mr. Kuan submitted that 3 years’ imprisonment was not manifestly excessive.

Our views

16.There are no sentencing guidelines for the offence of wounding with intent.  In Hung Kar Chun the Court of Appeal established a range of 3 to 12 years’ imprisonment for this offence (see Yuen Wai Kui9).

17.It is true that the range of 3 to 12 years is not a sentencing tariff, and the court is not obliged to impose 3 years’ imprisonment as the minimum term.

18.For the offence of wounding with intent, the circumstances of the offence and the background of offenders differ from case to case, and other decided cases are, in our view, of limited reference value.

19.We agree with the respondent’s submission that there were aggravating features in the present case.  The applicant had a quarrel with the victim over a chess game.  The attack on the victim was not made when the applicant was in a rage in the heat of the quarrel; instead, one to three days later (the quarrel could have taken place on 20 June, 21 June or 22 June) the applicant, hiding two sharp knives on his person, went to the victim to get even with him.   The

victim tried to flee and avoid the applicant, but the applicant chased him relentlessly and stabbed him with a sharp knife.  The attack was aimed at the left side of the victim’s chest and caused bleeding in his left axillary region.  It is fortunate that the victim did not suffer more serious injuries and that neither his heart nor thoracic cavity was injured.  However, the attack was one which could have inflicted serious injuries on the victim.

20.When the victim, injured by the stabbing, tried to defend himself, the applicant continued to attack him and injured his left hand as well.  The applicant went on and chased the victim until the victim took refuge in the office of a District Councillor, and even then the applicant remained outside the office and shouted abuses.

21.At the material time, the applicant was not suffering a momentary loss of reason, but instead was committing a premeditated offence.

22.Although the applicant is suffering from some illnesses (he had received a heart operation), his condition cannot be mentioned in the same breath with that of the defendant in Yeung Kam Kwai. Yeung was suffering from epilepsy.  The victim and Yeung lived in the same home for the aged.  The victim was grumpy and quarrelsome and laughed at Yeung when he had an epileptic fit.  Yeung told him to stop but to no avail.   Yeung decided to teach

the victim a lesson the following day.  Then he went to the victim with three knives and stabbed and wounded him.  The victim in that case suffered injuries more serious than those suffered by the victim in the present case.  The trial judge adopted 33 months as the starting point and sentenced Yeung to 22 months’ imprisonment.  The Court of Appeal held that the trial judge had erroneously thought that the victim’s injuries were more serious than they actually were, and that the trial judge had failed to consider the fact that the victim had provoked Yeung, that the attack was an isolated incident resulting from Yeung’s momentary loss of self control, and that Yeung, suffering as he was from epilepsy, was more susceptible to stress than an ordinary person.  The Court of Appeal held that there were exceptional circumstances and as Yeung had already been imprisoned for 9½ months, they allowed the appeal against sentence and replaced the original sentence by one which enabled Yeung to be immediately released.

23.Turning back to the present case, the applicant did not live with the victim in the same place, and one to three days after the quarrel the applicant, armed with two sharp knives, went to the victim to get even with him.  Although both the applicant and the victim are advanced in age, the facts of the present case are clearly distinguishable from those of Yeung Kam Kwai.  The applicant cannot expect to receive a lenient sentence as was the case in Yeung Kam Kwai.

24.It is true that the injuries suffered by the victim in the present case were not serious.  However, the applicant went to the victim, bringing along two sharp knives, and stabbed him in his left flank.  Serious injuries could have been inflicted on the victim.  In our view, it is not enough just to consider the injuries.  The court should consider all the circumstances.  As the Court of Appeal pointed out in Hung Kar Chun, the courts would not tolerate attacking another person with a lethal weapon such as a knife on minor provocation or while having a dispute, and for this type of cases the courts would impose more severe and deterrent sentences.

25.Having considered the facts of the present case and the applicant’s background (particularly his old age, his having received a heart operation, and the fact that he has only one conviction record for illegal gambling), we consider that in all the circumstances, the appropriate starting point is imprisonment for 2 years and 3 months.  As the applicant did not plead guilty, he is not entitled to the discount available on a plea of guilty.

Decision

26.For the above reasons, we have granted leave to appeal against sentence and, treating the application as the appeal proper, we have allowed the appeal, set aside the sentence of 3 years’ imprisonment and substituted therefor imprisonment for 2 years and 3 months.

Mr. Franco Kuan, Senior Public Prosecutor of the Department of Justice, for the HKSAR

Mr. Derek Hu, instructed by Messrs. K.B. Chau & Co., for the Applicant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.