BOONRUANG SATHIT v. R.

IN THE COURT OF APPEAL

1994, No. 155
(Criminal)

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J U D G M E N T

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Litton, J.A., giving the judgment of the court :

1. The applicant was convicted on her own plea before Deputy Judge Candy in the District Court on one charge of wounding with intent to cause grievous bodily harm, contrary to section 17 of the Offences Against the Persons Ordinance. She was sentenced to two years' imprisonment. She now applies for leave to appeal against that sentence.

2. The victim was the applicant's husband. The offence occurred in the early hours of the 31 August 1992 at a massage establishment in Mongkok where the applicant worked as a masseuse. She is a Thai national, having come to Hong Kong in 1980 and at the time of her conviction she was 34 years of age.

3. The circumstances of the offence are briefly these. The husband had got back to the massage establishment in the early hours of 31 August 1992, had woken her up, demanded services and then later went to one of the rooms in the establishment where he fell asleep. At about 5 am the applicant went into that room and stabbed him once in the lower chest with a knife. The knife was found bloodstained, abandoned about five feet away. He bled. The applicant attended to him and he asked her why she had stabbed him. She accused him of having been unfaithful to her. The injury to the lower chest consisted of a 3 cm cut wound and there was also a 3 cm wound in the husband's left palm. He was detained in hospital for 12 days.

4. The applicant has a 12 year old daughter by a former marriage. The applicant and the victim had married in 1989 and the applicant was the sole support for the family. As a result of her imprisonment her daughter has been left extremely vulnerable and we were told by counsel this morning that she is presently residing with a Miss Chan, a friend of the applicant.

5. The applicant has a clear record. She was plainly and demonstrably remorseful for what she had done and immediately accepted full responsibility for what took place.

6. The judge took a merciful view of the facts of the case. He gave a discount of one year for the plea of guilty, another six months for the family circumstances and yet another six months for the fact as he found that the attack was not premeditated; taking a starting point of four years he reduced the sentence to one of two years' imprisonment which was the term he imposed.

7. The first ground of appeal put forward by Mr Grounds is to the effect that the starting point for this case of four years' imprisonment is wrong in principle and the resulting sentence is therefore manifestly excessive. In dealing with this point, we observe that the spectrum of criminality for this section 17 offence is wide. It is difficult for the courts to lay down any meaningful starting point since the range of criminality is so extensive. There were in the present case exceptional circumstances. The applicant being a Thai national was in a position of considerable vulnerability in this community and the unhappiness with her husband must have put enormous pressure upon her, not mitigated by the fact that she was the sole support for the family. She had shown clear remorse. Immediately after the stabbing she attended to the victim and waited with him for the ambulance to arrive. The offence took place within a domestic context.

8. In these circumstances our view is that the starting point taken by the judge of four years after trial was too high and we accept Mr Grounds' submission that, for this case, a starting point in the region of 2 to 2 1/2 years after trial would have been appropriate.

9. Having regard to the somewhat exceptional mitigating factors present here, we set aside the sentence of imprisonment imposed by the judge and substitute a sentence of imprisonment of one year.