HKSAR v. WONG CHEE BUT

bjbj /nyr%RL ?e@S) h<_) Hon Stock JA, Beeson J and McMahon J in Court Date of Hearing: 26 January 2007 Date of Judgment: 26 January 2007 J U D G M E N T Hon Stock JA (giving the judgment of the Court): The applicant pleaded guilty to one count on an indictment alleging that on 3 June 2005 he maliciously wounded Chan Kin Kang with intent to cause her grievous bodily harm, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212. On 8 May 2006 he was sentenced by Lunn J to a term of four years eight months imprisonment. This is his application for leave to appeal against that sentence. The applicant was married in 1985 to the complainant by whom he had several children. In 1988 she and her daughters came to live in Hong Kong with the applicant but matrimonial problems led to a divorce in 1999. The history of their relationship since then is peppered by disputes about the payment of maintenance. In 2004 the applicant remarried and has been the beneficiary of social welfare payments. He has at all material times been living with his second wife and his mother at a room in Shek Yam Estate, Tsuen Wan. On 3 June 2005 the complainant and two of her daughters went to the applicant s home and repeatedly knocked on the door. After a while the applicant opened the wooden door holding in his hand a chopper. He opened the iron grille and told the complainant that if she did not go he would chop her to death. He then grabbed her by the hand. Inside the apartment, he struck her with the chopper and, according to the admitted facts, she struggled and tried to escape from the apartment but when she reached the door the applicant pulled her back and struck her again with the chopper. She continued to struggle and eventually escaped. Upon his arrest, the applicant said that he had consumed a small quantity of wine and was at the time of the attack blinded by rage at his former wife s behaviour. He said that as she did not go away when asked to do so, he retrieved the chopper. The admitted facts showed that when he saw her walking away he discarded the chopper and watch her take the lift and leave. Madam Chan sustained multiple chop wounds to her head, neck and left shoulder and was taken to hospital. She had suffered several wounds to her scalp each of which went deep down to the skull bone, and the surface of the bone was cracked, resulting in a compound depressed skull fracture of the outer table. She sustained a chop wound over the left shoulder where a piece of bone was sliced from the distal end of the left clavicle. There were also three chop wounds over the left side of the base of the neck, two chop wounds to the upper chest region, two superficial neck wounds, and a laceration to the left forearm. She underwent an emergency operation and was finally discharged from hospital on 7 June. Her neck and left shoulder wounds have healed well but, as the sentencing judge remarked, she still bears the highly visible disfiguring scar marks to the area above her left eyebrow, one or two on her left cheek, the base of the back of her neck, and her left shoulder. The applicant was aged 71 years at the time of sentence and is a person of previous good character. The essence of the mitigation put forward on his behalf was that she had made a repeated nuisance of herself towards the applicant, particularly from March 2005 when she would come to his home demanding maintenance for herself and, in March 2005, asserting that he was cheating the Social Welfare Department and that she would report him for doing so. In effect, he was saying that she was blackmailing him for money. The suggestion was made that she was in the habit also of making telephone calls demanding to speak to him. In short, what was alleged was cumulative provocation which resulted in the applicant losing his temper on the day in question. In his careful sentencing remarks, the judge made specific note of the applicant s age and of his previous good character and accepted that the attack was not premeditated. He concluded however, correctly in our view, that it is clear that your resort to attacking your wife with the deadly weapon that the chopper was was wholly and grossly disproportionate to what you may have found to be the irritating and persistent demands of your wife for maintenance. Clearly, on any view, you had many alternatives in the way in which you could have responded to this behaviour. Moreover, it s apparent that you struck your wife at least 10 blows and that you did so to vital areas of the body, namely, the head, neck and upper torso The judge said that in determining the starting point he had regard to the applicant s age and his previous good character together with the fact that over many years he had led a useful working life in Hong Kong. The starting point that he adopted was one of seven years imprisonment and, giving credit for the plea of guilty, he reduced that by one-third and imposed the sentence which is now the subject of this application, which is to say, a sentence of four years and eight months imprisonment. The essence of Mr Hoosen s submissions on behalf of the applicant is that insufficient credit was given to the fact that the offence was committed as a result of cumulative provocation, and was not premeditated, and the fact that the applicant was aged 70 years at the time of the offence and feeling extremely stressed. He has drawn our attention today to a medical report, supposedly to show the applicant was filled with remorse after the attack as evidence by a suggested attempt to suicide. The medical report that we are shown was not shown to the court below and what it does is to make reference to a report by the police that after the applicant s arrest he is said to have attempted to suicide. Upon our inquiries it transpires to have been no more than that the applicant apparently hit his head against the wall the day after his arrest. We note that the report goes on to say: He also expressed remorse towards his indexed offence but denied any suicidal ideation. As his housing issue was settled, he was noted to be calm and stable during the monthly follow-ups from June 2005 to February 2006. We are satisfied that had this report been shown to the sentencing judge it would not have any impact on the sentence imposed. We are satisfied that the application is without merit. It cannot be said that the sentence imposed was manifestly excessive. Granted that the applicant was the subject of some persistent conduct by the complainant which caused him stress, and taking into account also the fact that he is a man of advanced years who has never before been in trouble with the law, nonetheless he chose to bring a chopper to the door and the attack was a persistent one: one notes in particular that when she tried to leave, the applicant pulled the complainant back so that he could continue with the attack. As the sentencing judge noted, the attack was directed to the head and upper torso of the complainant and when one bears in mind that such a sustained attack with such a deadly weapon to such a vulnerable part of the victim s body could readily have resulted in her death, the sentence imposed is put in its true perspective. The application for leave to appeal against sentence is, accordingly, dismissed. (Frank Stock) Justice of Appeal (C-M Beeson) Judge of the Court of First Instance (M.A. McMahon) Judge of the Court of First Instance Mr David Leung, SGC, of Department of Justice for the Respondent Mr Hoosen instructed by DLA for the Applicant PAGE - A B C D E 1udk 1udk H; < :X7Y jFen :X7Y & 6" Flora-template-ABC-Final (fair)1.dot setup Microsoft Word 9.0 Judiciary Title Source Erica Microsoft Word Document MSWordDoc Word.Document.8