THE QUEEN v. TSUI MEI YING

IN THE COURT O APPEAL

1987 No.409
(Criminal)

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JUDGMENT

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Power, J.A.:

1. The applicant was charged that on 17th May 1987 at Tsuen Wan she did unlawfully and maliciously wound her husband; LIN Yuk-sang; with intent to cause grievous bodily harm to him. She pleaded guilty to that charge and was sentenced to imprisonment for 4½ years. She now seeks leave to appeal against that sentence.

2. The facts reveal that she was married to LIN Yuk-sang in 1972 and the couple now have 5 children between the ages of 7 and 14. At the time of the offence the family lived at a flat in Sunny Villa, Castle Peak Road. The applicant had accused her husband on a number of occasions prior to the commission of the offence of seeing other women and of staying out late and spending money on them. She received specific information about her husband’s matrimonial misconduct in the weeks preceding the offence and, indeed, on that very day a private inquiry agent informed her that he had seen her husband with a young woman.

3. On the evening of the offence she and her husband went to the Cinema and then returned to the flat retiring to bed at about midnight. There was no quarrel before retiring but at about 1.30 a.m. the victim awoke in great pain to find his wife standing by the bed. He realised that his penis had been severed and when he asked what she had done she replied, “So you won't fool around with women in future.” The police were called and the applicant said when interviewed: “I have only cut off a small section from him".

4. The applicant was examined by Dr. Ho, a government psychiatrist at Castle Peak Hospital. Upon admission he found her to be emotional and agitated. He said that she became settled later on but that she was suffering from a depressive reaction to her marital problems. He said, however, that she exhibited no psychotic features. Dr. K. Singer who examined the applicant, having been asked to do so by her solicitors, found that she was suffering from depression which became severe and was a natural consequence of the stress occasioned by her husband’s behaviour. He said that the "depression" was not normal depression felt by normal people in the normal vicissitudes of life but was a psychiatric disorder by virtue of its intensity, its range of symptoms and the degree or incapacitation and that the illness culminated on the day of the offence when she received news from the private investigator and went into a state of anguish, hopelessness and confusion.

5. An unusual feature of this case is that the victim has now forgiven his wife and is keen for a reconciliation which will reunite the family.

6. The main ground urged before us today by Mr. Corrigan is that the learned trial judge failed to give any sufficient consideration to the medical evidence as to the applicant’s state of mind. The trial judge when dealing with the matter took into account all relevant matters of fact. Indeed, in our view, his approach in this regard cannot be faulted.

7. We are urged to give particular weight to the effect a period of imprisonment will have upon the applicant. We are satisfied that it may well exacerbate her mental illness and that it will, undoubtedly, adversely affect both the children and the family as a whole.

8. We are, nonetheless, satisfied that the public interest demands that an offence of this kind be visited with the imposition of a substantial term of imprisonment. What we have to ask ourselves is whether the offence, given all of the circumstances, warranted a sentence as long as 4½ years. The trial judge rightly said that the fact that the applicant wife has been forgiven by her husband cannot be given too much weight. We emphasize, as did the trial judge, that the real gravity of the offence lies in the terrible injury, deliberately occasioned, and in its probable consequences to the victim.

9. Having said that we turn to the particular and unusual facts of this case. We bear in mind, particularly, that the matrimonial misconduct of the victim over a long period precipitated the offence and that it was committed when the applicant was in a distressed mental condition. We are satisfied that she is now overcome by genuine remorse having realised the enormity of what she has done.

10. In all of these circumstances we are satisfied that the period of imprisonment of 4½ years was not called for. We grant the application and treat it as the hearing of the appeal. We order that a period of imprisonment for 2 years be substituted for the period of 4½ years originally imposed.