HKSAR v. YEUNG KAM KWAI

CACC 458/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 458 OF 2007

(On Appeal From District Court Criminal Case No. 956 of 2007)

________________________

J U D G M E N T

Hon Cheung JA (giving judgment of the Court) :

1. The appellant pleaded guilty before H H Judge Chua to a charge of wounding with intent contrary to section 17(a) of the Offences against the Person Ordinance (Cap. 212) and was sentenced to 22 months’ imprisonment.  Pursuant to leave to appeal granted by a single judge of this Court, he now appeals against the sentence.

The appellant

2. The appellant was 69 years of age at the time of the offence.  He has no previous conviction.  He has been a single person.  He lost his parents at a young age and has been living on his own until he was admitted to an old aged home (‘the Home’) in 1999.  He has been suffering from epilepsy which occurs several times a month.  He would lose consciousness after the fit.  He receives medication for his illness.  He was described by the staff at the Home as having a stable emotion and was independent in mobility except when he had the epileptic fits.  He was considered a placid person, rather outspoken but not a trouble maker.  He took active part in the activities organized by the Home and had maintained harmonious relations with the staff of the Home and the residents.

The victim

3. The victim was another elderly person living at the Home.  He was 76 years of age.  He was described by the nurse at the Home as grumpy and quarrelsome.  He quarrelled with other residents of the Home and had once threatened a worker at the Home with a knife in 2003.

The offence

4. The background to the offence showed that on 30 September 2007, the appellant suffered from epileptic fits for a few times that day.  The victim laughed at him and teased him about his illness.  The appellant told him to stop but to no avail.  The appellant brooded over the matter overnight and decided to teach the victim a lesson.  The next morning he took three knives, two in his left hand, went to the victim’s room and stabbed his back with the knives.  The victim was rescued by the staff of the Home and sent to hospital for treatment.  Under caution, the appellant told the police that the victim always teased him about his disability and epilepsy. 

The injuries

5. The medical report on the victim dated 24 October 2007 showed that

‘ Patient was alert and able to speak in full sentence upon examination.  His vital signs were stable.  Totally 8 skin cut wounds were seen on chest wall and left shoulder.  Each wound measured 2cm in length.  The distribution of the wounds were:

-      One at the left shoulder humeral head region

-      One at left posterior shoulder

-      One at left clavicular region

-      Two at left chest wall; above the nipple

-      One at right shoulder

-      Two at right upper chest wall

-      The chest, abdominal and neurological examination were unremarkable.  X rays of chest, neck, left shoulder were normal.’

6. A more detailed medical report of the victim dated 1 December 2007 showed that,

‘The above-named patient was admitted to the surgical ward on 1/10/2007 0720 for stab injury.  He was stable haemodynamically.  Chest X-ray was normal.  A CT scan was performed showing no pneumothorax and no rib fracture but a right pleural effusion was detected.  All the peripheral pulses were present.

He was then operated at 1550 under general anaesthesia.  Right chest drain was inserted which drained 300ml old blood.  All the wounds were explored and suturing were done.  The location and the length of the wounds were as follows:

left supraclavicular: 2.5cm, deepest wound, extend medially to left sternocleidomastoid region

All the followings wound are to skin level only:

left shoulder: 1.5cm & 2cm

left anterior chestwall: 1cm & 3cm & 2cm

right anterior chestwall: 2cm & 2cm & 2cm

(the number of stitches was not recorded)

All wounds were sutured with stitches.

Chest drain was taken off on 4/10/2007.  Wound has healed without infection.  He was scheduled for rehabilitation at the convalescent hospital.  However, as the waiting list was long, he stayed in Kwong Wah Hospital till 16/10/2007 and was discharged home.’

The Judge’s view

7.  The Judge used a starting point of 33 months’ imprisonment, reduced it by one third because of the guilty plea and arrived at a sentence of 22 months’ imprisonment.  In arriving at this sentence the Judge referred to the decision of Stuart Smith LJ in R v. Nottingham Crown Court, ex parte DPP [1996] 1 Cr. App R. (S) 283 who directed the Court to consider the consequence to the victim when considering the gravity of the offence and the appropriate sentence. 

Extent of wound

8.  The Judge considered that the victim had not merely suffered skin wounds but serious wounds.  This view was not wholly justified.  It is clear from the two medical reports that apart from the one wound which was the deepest, the length of which was 2.5 cm, the rest are skin level wounds.  That particular wound was not ‘2 and 5 centimetres deep’ as described by the Judge.  The blood that was later drained was ‘old blood’.  Although there was a right ‘pleural effusion’ (i.e. passage of fluid through the blood wall into the membrane which covered the lung) there was no pneumothorax (i.e. a collection of air in the pleural cavity, into which it has gained entrance by a lesion in the lung or by a wound in the chest wall).  Hence although the blood vessels were damaged either by the cut wounds or as Mr. Selwyn So, counsel for the appellant, submitted, by blunt objects, namely, the knives, the lung of the victim was not pierced by the knives.

The three decisions

9.  The Judge referred to three decisions on wounding when she chose a starting point of 33 months’ imprisonment.

10.  In AG v. Ng Chuk Hung (CAAR 1/1994), the victim suffered ‘multiple small wounds over left upper chest, arms, side hip and thigh’.  A probate order was imposed.

11.  In Secretary for Justice v. Chau Wan Fun (CAAR 1/2006), the victim sustained ‘catastrophic’ injuries, he was unconscious five weeks after the attack from which he sustained ‘chest stab wound, laceration of heart with open wound into thorax, and respiratory failure’.  Complication from the injuries developed in the victim’s left leg which required its amputation from above the knee.  A sentence of 3½ years’ imprisonment was imposed.

12.  In AG v. Low Wing Wah (CAAR 8 of 1995), the victim sustained ‘a deep lacerated wound to the eyebrow and the eye, with the result that the victim lost his eye’.  A sentence of four years’ imprisonment was imposed.

13.  In our view the injuries sustained by the victim in the present case clearly falls within the lower range of the injuries mentioned in these three cases.  The injuries to the victim although serious, were not so serious as to require a 33 months’ starting point.

Mitigating factors

14.  By concentrating on the consequence to the victim the Judge had failed to consider other mitigating circumstances such as :

1)  The attack occurred as a result of the provocation by the victim (see Chau Wan Fun).

2)  This was an isolated incident of a loss of temper and was an out of character act by the appellant (see HKSAR v. Au Yeung Ng (CACC 153/2008), HKSAR v. Kwok Cheuk Man (CACC 7/2005) and AG v. Ng Ka Ling (CACC 586/1987)).

3)  The appellant himself suffered from epilepsy and required medication to suppress the illness.  This may be an indication that he may be more susceptible to stress than someone without the disability.

4)  The previous good character of the appellant.

15.  This is a very exceptional case and we considered that the sentence imposed by the Judge was too severe and manifestly excessive.  This has been properly and fairly conceded by Ms Sin, SADPP, counsel for the respondent.  A section 17(a) offence is an excepted offence and does not qualify for a suspended sentence.  A probation order or community service order may not be appropriate in view of the age of the appellant and the isolated nature of the offence. 

16.  As the appellant had been in custody since 1 October 2007, this means he has served a sentence of over 9½ months’ imprisonment.  In the circumstances, we will allow the appeal and will substitute the existing sentence by a sentence which enables him to be immediately released from jail custody.

Direction

17.  We also direct the Director of Social Welfare to ensure that the appellant will be adequately housed after his discharge from custody in view of the indication by the Home that it will not admit the appellant again because of the present offence.