SECRETARY FOR JUSTICE v. CHAU WAN FUN

CAAR 1/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 1 OF 2006

(ON APPEAL FROM DCCC NO. 946 of 2005)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.  On 21 January 2006, leave was granted to the Secretary for Justice (the applicant) pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221, to apply for a review of the 9-month sentence of imprisonment imposed in the District Court by Judge Geiser for wounding with intent contrary to section 17(a) of the Offences Against The Person Ordinance, Cap. 212.  Mr Cross, SC, on the applicant’s behalf, submitted that the sentence was manifestly inadequate.

2.  The respondent, then aged 34, pleaded guilty on 16 November 2005.  The charge against her was particularised as follows:

“… on the 21st day of August, 2005, at Room 1706, Chun Cheung Court, Hong Kong Jockey Club Staff Quarters, Shatin, New Territories, in Hong Kong, [she] unlawfully and maliciously wounded LI Mun-tim, with intent to do him grievous bodily harm.”

3.  The victim and the respondent were husband and wife respectively.  The victim had been employed by the Hong Kong Jockey Club to work in their horse stables.  The couple lived with their two daughters, then aged 8 and 2, at quarters provided to members of staff by the Hong Kong Jockey Club.  Owing to his indebtedness, the victim, without consulting the respondent, resigned from his job and, as a  consequence, the family had to move out of their quarters.  The respondent was naturally very upset at this turn of events.

4.  On 21 August 2005, whilst the victim and the respondent were preparing to move out of their quarters, the respondent discovered that her gold ornaments and other items of jewellery, valued at about $23,000, had gone missing.  The victim admitted to her that he had pawned the jewellery in order to repay his debts.  The respondent became furious and, in a rage, she fetched a fruit knife from the dining table and tried to stab the victim.  The victim resisted and the knife was broken.  However, the respondent did not give up and she then fetched another knife from the kitchen.  We have seen the knife and it is plainly a sharp one tapering to a sharp point at the end.  This time she successfully managed to stab the victim once in the back and once in his chest.  The attack was witnessed by the couple’s elder daughter.

5.  Having heard noises, a neighbour who came round saw the victim lying in a pool of blood.  He immediately reported the incident to the caretaker of the building.

6.  Subsequently, after the respondent had reported to the police what she had done, she was arrested and admitted that she had used a knife to stab the victim in a moment of anger and desperation.  She claimed that the victim had stolen her jewellery and that she had previously repaid his debts of approximately $100,000.

7.  The victim sustained a “chest stab wound, laceration of heart with open wound into thorax, and respiratory failure”.  Exploratory sternotomy, repair of the heart and pericardium, and temporary tracheostomy were carried out.  However, he remained unconscious due to deprivation of oxygen caused by the injuries and stayed in the Intensive Care Unit of the Prince of Wales Hospital before he was later transferred to the general ward.

Sentencing

8.  The judge sentenced the respondent on 26 November 2005 after an adjournment for the preparation of a background report in which the probation officer, Ms Kwan Yuen-lan, aptly described this case as a “family tragedy”.

9.  In sentencing the respondent, the judge described how the respondent came to commit the crime:

“

9.

… I do accept that the respondent had had just about as much as she could take.  She suffered the indignity of having debt collectors at her door.  Her husband, the victim, had inexplicably resigned from a good secure job with the Jockey Club, and they were having to move out of the staff quarters as a result.  The last straw was finding out that her husband had pawned her gold ornaments and jewellery in order to pay off debts; debts which she herself had previously paid off with her own life savings of some $100,000.  It is under these circumstances that the respondent snapped.”

10.  The judge took the view that this was a case where it would be proper to take a lenient course, saying:

“	3.	The respondent has no previous convictions.  She is a woman of hitherto unblemished character.
	4.	The Background Report, which has been provided to me by the Probation Service at short notice, indicates that the respondent is 34 years of age.  She has two young children, both girls, aged 3 and 8.  She is a devoted mother and has been a loving and supportive wife.
	5.	She has good friends and neighbours, one of whom is a lady called Madam Lo Kit-hing.  She, at the moment, looks after the two children.  Madam Lo describes the respondent as ‘a gentle, helpful and hard-working person’.  Another friend, Madam Kong Chui-wan, describes the respondent as ‘hard-working, considerate and helpful, who performs the role of a mother and a housewife well, taking good care of her daughters and her home’.
	6.	I have also been touched by the hundreds of signatures from various Jockey Club stables paying testament to the respondent and showing their support for her.
	7.	Nevertheless, due to the extremely serious nature of this charge and bearing in mind that the victim has suffered life-threatening injuries, it seems that a prison sentence is inevitable.  However, due to the circumstances of this tragic case and the fact that the respondent will have to live with what she has done to her husband, the father of her children, for the rest of her life, I am satisfied that this is a case where I can properly temper justice with mercy.  I am further satisfied that this offence was completely out of character, and that the respondent is most unlikely ever to re-offend.”

11.  The judge acknowledged the gravity of the offence in these terms:

“

8.

This is not in any way to belittle what the respondent has done.  This was a vicious attack on her husband who could, quite easily, have been killed.”

Nevertheless, the judge adopted a starting point of 18 months’ imprisonment, recognising when he did so that this was “exceptionally low”.  He duly reduced this by one-third to 12 months’ imprisonment to reflect the respondent’s plea of guilty.  The judge further reduced the sentence by three months “to take account of [the respondent’s] hitherto good character, and also to ensure that the two young children can be reunited with their mother as soon as possible”.  This left a sentence of 9 months’ imprisonment which was completed earlier this year, in February, when she was discharged from prison.

The application

12.  Mr Cross’ principle submission was that a sentence of 9 months’ imprisonment was manifestly inadequate having regard to the extreme seriousness of the attack and the consequences of that attack upon the victim which Mr Cross was amply justified in calling “catastrophic”.  At the time when the Summary of Facts was prepared, approximately five weeks after the attack, the victim was still unconscious.  The judge was also informed prior to sentencing that, as a consequence of complications which developed in the victim’s left leg, it had been necessary to amputate that leg above the knee.

13.  We have been provided with up-to-date medical reports.  In short, the victim has what is described in a letter received from the Tai Po Hospital, dated 27 April 2006:

“Spontaneous eye opening but he is not aware of his surrounding[s] and he could not communicate with the outside world in term[s] of facial expression, gesture or language.  He doesn’t have any purposeful limb movement.  He is bedbound and totally dependent [on] personal care …”

14.  With these considerations in mind, Mr Cross submitted that the starting point of 18 months’ imprisonment which the judge had taken was far more lenient than it should have been.  Mr Cross relied on what was said by Stuart-Smith LJ in R v Nottingham Crown Court, ex parte DPP [1996] 1 Cr App R (S) 283 at 288:

“It is a cardinal principle of sentencing that the court should take into account when considering the gravity of the offence and the appropriate sentence, the consequences to the victim.  This is because one of the purposes of the criminal law is to assuage the feelings of victims and their friends and relations.  The law must redress their grievance by inflicting an appropriate punishment and then there is no excuse for the victim or his friends to exact their own retribution.”

15.  Mr Cross made three other criticisms of the judge’s approach which are worthy of mention.

16.  Firstly, he rightly pointed out that as the Court of Appeal has indicated that a one-third discount “is usually to be regarded as the high watermark of the discount given to a defendant pleading guilty in good time” (See: HKSAR v Lee Kwok Chuen, CACC 445/2000), the discounting of the respondent’s sentence by an additional three months “to take account of [her] hitherto good character” was not appropriate.

17.  Secondly, Mr Cross submitted that, whilst the judge’s desire to see the respondent’s children reunited with her “as soon as possible” was a laudable aim, the fact that the victim had been so severely injured that he was in no position to care for his children was not something which ought in any sense to weigh in the respondent’s favour when she had herself been instrumental in bringing about the victim’s helpless condition.  There were, in any event, a number of relatives, according to the probation officer’s background report, who were prepared to assist with the care of the children.

18.  The third additional point raised by Mr Cross was that the judge had placed undue emphasis on the signatures of a number of persons “showing their support” for the respondent.  We need only say in this regard that obviously, whilst an outpouring of public sympathy towards the plight of an offender may in some circumstances be a relevant consideration for the purposes of mitigation, when the offence is as grave as it was in this case, such mitigation as this may amount to will necessarily carry very limited weight.  We accept, though, in relation to some of the letters that they show that the conduct of the respondent was entirely out of character.  This is a factor that is not to be ignored and is reflected in the result at which we have ultimately arrived.

Respondent’s submissions

19.  Mr Suen Kam-hee, on the respondent’s behalf, reminded us about the blameless way the respondent had conducted her life both as a wife and a mother up to the moment when she suddenly snapped.  The relationship had apparently been deteriorating over recent years following frequent quarrels over money matters.  Mr Suen, in his written argument, rightly submitted that other decisions of this court were of little value in determining the length of sentence in the context of domestic violence where premeditation had been a factor leading up to the attack.  Here, there was, he submitted, a momentary loss of self-control triggered after years of provocation.  The respondent had been reduced, after exhausting her life savings towards the repayment of the victim’s debts to banks and other financial institutions, to collecting newspapers and used drinks’ cans to earn a meagre income to support the family at least to a level where they were able to survive.  All in all, Mr Suen contended that the judge’s humane treatment of the respondent was justified.  This was, he submitted, a truly isolated incident, never likely to be repeated, following severe provocation towards a woman whose violent conduct, in the circumstances which gave rise to it, was far removed from the usual kind of criminal behaviour associated with those who come before the courts.  In the event that this court allowed the review, Mr Suen informed us that the respondent’s children would be looked after by the victim’s elder sister, Madam Li Fuk-ho.

Conclusion

20.  We have found this a very difficult case to decide and we sympathise with the judge over what must have been for him a very real dilemma in finding an appropriate level of sentence.  On the one hand, this was an act of violence which could hardly have been more serious.  Significantly, having broken one knife, the respondent went back to fetch another to complete what she had started.  This was plainly an outburst of rage on the part of the respondent when she could no longer control herself, arising from the discovery that her husband, the victim, had pawned her jewellery, her last remaining personal effects, after all the wrongs she felt he had done to her.  On the other hand, the respondent was a decent, hardworking person and a loving mother.

21.  Today, we have heard from Mr Wong Hon-tung, an assistant social worker with the Social Welfare Department, who has responsibility for overseeing the respondent’s family.  He has confirmed that the respondent appears to be a devoted mother and that her two daughters are plainly very attached to her.

22.  We also learnt in the course of these proceedings that the respondent regularly visits the victim in hospital.  On some occasions, she has taken her daughters with her.  It is clear also that she has considerable feelings of guilt over her outburst of violence and the tragic consequences which have flowed from it.  It is, additionally, not without importance, that in view of what has occurred, the Jockey Club has allowed the family to remain in their accommodation which, it seems, will continue whether or not the respondent has to return to prison.

23.  When all is said and done, however, the courts cannot, and must not, lose sight of the gravity of an offence of serious violence by imposing a custodial sentence, as the judge in this case properly recognised was inevitable, which is so lenient that justice cannot be said to have been done.  Bridge LJ, in R v Buchanan [1980] 2 Cr App R (S) 13 at 15 said:

“It is always sad when a case of this nature comes before this Court, where an offence of gross violence has been committed in a purely domestic context.  It is by no means an unusual feature of such cases that the victim, after the event, has entirely forgiven the offender and is anxious to minimise the punishment he must suffer.  It is sometimes suggested, although Mr. O’Connor wisely has not put it in this way, that because the offence occurred in a purely domestic context, it was a matter of purely domestic concern.  That is a wholly erroneous view and one which no court can entertain.  When such offences of violence are committed, whoever the victim may be, the matter is inevitably one of considerable public concern.  The courts cannot regrettably be deflected from their duty of imposing sentences appropriate to the gravity of the offence when crimes of violence of this nature are committed against a domestic background.”

24.  The victim in the present case has effectively been reduced to a vegetative state.  In normal circumstances, a very long sentence would be called for but we accept, as the judge was right to do, that the circumstances were anything but normal.  In reality, this is a case which differs very little from manslaughter.

25.  Given the nature of the attack and the very grave consequences to the victim arising from it, but balancing that with the circumstances of the respondent at the time of the offence, it is our opinion a starting point of 6 years’ imprisonment would have been appropriate on the charge as it stands.  In saying this, we recognize the fact that this offence was committed by a decent person at the end of her tether, and that there was scant premeditation.  We have a persuasive letter from her that spells out in compelling detail the pressures that built up over some considerable period of time which eventually led her to act in the way she did.  The respondent is deeply remorseful and visits the victim regularly.  There are children to whose company the mother has been restored and acceding to the applicant’s motion would mean returning the mother to prison.  Were it not for those facts, the sentence that we have decided to impose would have been significantly greater.  But domestic violence of the kind we see in this case, with ready resort to dangerous weapons, albeit under great pressure, is, we regret, too common and the result, as we see in this case, can be very grave indeed.  It is a result that cannot be ignored, and having regard to all the circumstances we would not, in our opinion, be justified in taking a starting point of less than 6 years’ imprisonment.  Taking the usual discount of a third for the plea of guilty, this would be reduced to 4 years.  We are very much aware that the respondent has now been released from her sentence of 9 months and we take this factor into account on this review in further reducing the sentence to 3½ years’ imprisonment.

26.  Accordingly, we allow this application for a review on the ground that the 9-month sentence originally imposed on the respondent was manifestly inadequate.  We quash that sentence and, in substitution, we pass a sentence of 3½ years’ imprisonment.