HKSAR v. TAM CHI HONG

CACC 72/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 72 OF 2008

(ON APPEAL FROM HCCC NO. 232 of 2007)

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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):

1.  On 12 February 2008, the applicant pleaded guilty to a count of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212.  V Bokhary J sentenced the applicant on the same day to 6 years and 8 months’ imprisonment and he now seeks leave to appeal against this.

2.  The offence took place on 15 June 2007.  The victim, Leung Oi-yan, was the applicant’s former girlfriend.  During the evening, they quarrelled and after the applicant had accompanied the victim to Tseung Kwan O where she lived, the quarrel resumed.  The applicant chased the victim and took a small Phillips screwdriver from his knapsack which he then proceeded to use by stabbing her in the face and on the head, both arms and on her chest and back.  All in all, aside from multiple areas of bruising, the doctor found 28 wounds and lacerations.

3.  The applicant was arrested at the scene after the victim’s cries for help were heard by a passer-by who called the police.

4.  We have been provided with photographs which illustrate the extent of the victim’s injuries.  Fortunately, as it turned out, only one of the wounds led to serious damage being done to the victim as this was associated with a fracture of her 8^th rib.  By 5 November 2007, this injury was recorded as having almost completely healed.

5.  In sentencing, the judge adopted a 10-year starting point which, in a well presented argument on the applicant’s behalf, Mr Phil Chau described as “disproportionate to the applicant’s conduct”.  He submitted that the judge had given insufficient weight to the mitigation which he summarised, when addressing the judge, as follows:

          “So, given his remorse, his guilty plea, his rather supportive family, his good background, the fact that Miss Leung has nearly fully recovered with no evidence of any permanent injury or scarring, I would ask my Lady to take as lenient a starting-point as possible and give him the one-third discount for his timely plea.”

6.  In his submissions before us, Mr Chau placed emphasis on two additional factors of which the judge had also been made aware, namely, that the applicant’s attack on the victim was without any premeditation and that it was said to have been brought on, to some extent, by provocative conduct on the victim’s part.

7.  The final point made by Mr Chau was that too great an emphasis had been placed on the multiplicity of wounds, none of which was life-threatening and many of which were only superficial.

8.  This was a dreadful attack in which there can be no doubt whatever that the applicant, as he admitted when he pleaded guilty, intended to inflict really serious harm on the victim.  It was pure luck that she was not more badly injured. 

9.  Dealing with what was suggested to have been the victim’s provocative conduct, the applicant and the victim had known each other since 2004 and, after living together for almost a year, they broke up in March 2007.  One of the reasons for this was that the applicant was a heavy gambler and had borrowed large sums of money from the victim to support his habit.  By the time of the offence, he owed her about $360,000.  Set against this, the nature of the victim’s provocative conduct was said to have been that the victim had ignored the applicant as he spoke to her.  Instead, she carried on listening to her MP3 player.  Added to this, the victim had been very angry with the applicant and had threatened to call in a debt collector.  Finally, when the applicant had demanded to know if the victim had had sex with a particular work colleague, she admitted that she had. 

10.  All in all, it seems to us that the applicant has been shown to have not only a highly dangerous temper but also a selfish and possessive personality.  If there was provocative conduct, it was minimal having regard to the whole background and the context in which it may have arisen.  We note also, in passing, that the applicant pleaded guilty on 7 December 2004 to false imprisonment, criminal intimidation and common assault.  Mr Chau informed us that all of these offences related to an incident involving his former wife when he was seeking to obtain money from her.

11.  With all of these factors in mind, most notably that this was not an attack which involved any premeditation and, as it happens, the attack has led to no lasting injury, we consider that a 10-year starting point was manifestly excessive and that this offence merited 8 years’ imprisonment after trial.  This must then be reduced by a third to reflect the guilty plea.

12.  Accordingly, we shall grant leave to appeal and, treating the hearing as the appeal, we will reduce the applicant’s sentence and substitute a sentence of 5 years and 4 months’ imprisonment, having given full credit for his plea of guilty.  The appeal is allowed to this extent.