ATTORNEY GENERAL v. CHU KWOK CHAU

IN THE COURT OF APPEAL

Application for Review
1995, No.18

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. This is an application for review brought by the Attorney General. The respondent faced one count of grievous bodily harm with intent, it being particularized that he on 30th May 1995 outside Room 129, Block 18, Shek Kip Mei Estate, Shek Kip Mei, unlawful and maliciously caused grievous bodily harm to Chau Kam-wah with intent to do him grievous bodily harm. He pleaded guilty to that charge and was sentenced by District Judge Surman to imprisonment for 2½ years. He has a bad record of some 20 previous convictions which include wounding and resisting arrest.

2. The admitted facts indicate that the victim was a person who lived near to the residence of the respondent and that at about 4 p.m. on 30th May 1995, the respondent made use of what is described in the agreed facts as "a wooden stick". We, having seen it, consider it would be more properly described as a wooden pole, resembling an axe handle. It is just under a metre long and is a quite substantial weapon if used as it was on this occasion. The respondent picked it up and rushed out to hit the victim on the waist, hands and head. After doing so for some time he discarded the implement and left. A neighbour who saw the attack, seeing that the victim had been injured, reported the matter to the police.

3. A Dr. Kwok gave a report saying that the victim was admitted to the Neurosurgical Unit at Kwong Wah Hospital on 30th May with an intracranial haemorrhage and fracture of the left arm and was in a deep coma. An emergency cranieotomy and evacuation of blood clot was performed. The condition of the victim was complicated by a pulmonary oedema and respiratory failure. He suffered continuing injury and was, we have been told, in hospital for the rest of that year. He, at the present time, is still paralysed down the left side of his body and is not yet been able to resume his occupation as a hawker.

4. The truth of a statement by the respondent was not challenged by the prosecution. In it he said that the reason for the attack was that he had purchased poor quality drugs from the victim and that when he had asked for a refund the victim had refused and had punched him on the chest twice. This, the respondent said that this irritated him and for that reason he committed the assault.

5. The trial judge rightly characterized it as a very serious assault. He was satisfied, again rightly in our view, that there was no provocation of any consequence. Having referred to the case of R. v. Lee Fu Keung (1984) Criminal Appeal No.84, he was satisfied that the proper sentence was one of 2½ years, having taken a starting point of 3½ years, and made a reduction because of the guilty plea. We think he misled himself when he took Lee Fu Keung as a guide to the appropriate sentence. That was a case in which a person had been struck with a water pipe and a folding stool and had suffered a fracture of the left femur. The present attack was a very different and much more serious one.

6. The Attorney General submits that the sentence wholly failed to reflect the gravity of the offence. We are satisfied that his argument is correct. The beating was a severe one in which a wooden pole was used. Blows were directed to the head of the victim which were likely to inflict life threatening, or at least disabling, injury and in the outcome they did just that. We are satisfied that the starting point should have been at least 5 years. Indeed even that starting point is at the bottom of the appropriate range. We give a discount of 1½ years for the plea of guilty.

7. The Attorney General's application succeeds and the sentence of 2½ years is varied to one of 3½ years.