SECRETARY FOR JUSTICE v. YU YAT SANG

CAAR 2/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 2 OF 2010

(ON APPEAL FROM DCCC NO. 825 OF 2009)

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.  Pursuant to leave granted by the Chief Judge on 29 January 2010, this is an application by the Secretary for Justice for review of sentence under s. 81A of the Criminal Procedure Ordinance, Cap 221.

2.  The respondent was charged in the District Court with one offence of wounding with intent to do grievous bodily harm, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212 and one offence of unlawful and malicious wounding, contrary to section 19 of that Ordinance. He pleaded not guilty but after an unsuccessful challenge to the admissibility of inculpatory statements made by him, he changed his plea to guilty to both offences and on 7 January 2010 he was sentenced by District Judge Douglas Yau to a total term of 20 months’ imprisonment.

The facts

3.  The facts which formed the basis of sentence were contained in the prosecutor's opening statement, which facts were, at the time of the plea of guilty, admitted by the respondent.

4.  The charges arose from a dispute between the respondent who at the material time was employed as a fisherman on a fishing vessel berthed at the Pier of the Tai Po Wholesale Fish Market and two other fishermen employed on another such vessel. All three men were from the Mainland and they had known each other for a few months.

5.  At about 7 p.m. on the evening of 6 July 2009, the respondent was playing mahjong with others on a fishing vessel berthed at the Pier and one of the victims of the wounding which was later to take place, and to whom we shall refer as PW1, was watching the game. The respondent lost some money and as a result of comments made by PW1 a heated argument developed which resulted in some pushing and a struggle ensued. The respondent reported the matter to the police who arrived, and the matter was settled between the parties by the payment to the respondent of $500 compensation.  The respondent and PW1 returned to their respective boats.

6.  About five hours later, that is to say at about 12:30 a.m. on 7 July 2009, whilst PW1 and PW2 were sleeping next to each other on their fishing vessel, the respondent:

“… came over to Boat 1 with a chopper and chopped PW1. PW1 felt a great pain and screamed during which time PW2 was also wakened by PW1’s screaming.  Both PW1 and PW2 saw the [respondent] standing next to PW1 and holding up a chopper and tried to chop PW1. PW1 and PW2 grabbed the hands and the body of the [respondent] to prevent him from carrying out further attacks.  During the struggle, PW2’s right forearm was chopped by the chopper held by the [respondent] but PW1 managed to snatch the chopper from the [respondent]. However, PW1 and the [respondent] lost their balance during the struggle and both of them fell into the sea…. PW1 climbed back onto Boat 1 whereas the [respondent] swam towards the pier.”

7.  A report was made to the police and the respondent was arrested shortly thereafter. Under caution, he said that he had chopped the two men out of “momentary madness”. It was established that the chopper used came from the boat upon which the respondent worked and slept.

8.  PW1 and PW2 were taken to hospital. The summary, the facts of which were agreed, reads as follows:

“PW1’s right ear was cut apart and he also suffered a 10 inch long cut wound on his neck and a 6 inch long cut wound on his back as a result of the attack. PW2 also suffered a 6 inch long cut wound on his right forearm as a result of the attack.”

9.  It is a remarkable fact that no medical report was placed before the sentencing judge, so we do not know what is meant by “cut apart”, though we assume that the ear was almost severed but put back together. We have seen photographs of the injuries but have had to put them to one side because we were today informed that the sentencing judge was not shown any photographs. How prosecuting counsel on fiat (not Mr Lee before us today) could think that a case of this nature could properly be advanced without presenting the judge with medical reports and photographs, it is difficult to imagine.

10.  In an interview conducted with the respondent subsequently, he told the police that in the course of the mahjong incident, he had a dispute with PW1 and was punched; that they afterwards settled the matter and returned each to his own vessel but that later that night he, the respondent, took a chopper from his vessel and carried it with him to Boat 1 where he saw PW1 and PW2 sleeping next to each other. He chopped PW1 but could not remember upon which part of the body or how many times; he then struggled with the two men and fell into the sea.

11.  The judge had the advantage of two reports, one from a probation officer and the other from a clinical psychologist. The version given by the respondent to the psychologist was significantly different from the facts which he admitted upon his guilty plea.  He told the psychologist that at the material time, he went to use a washroom and armed himself with the chopper for self-protection, that he was attacked by the two men and that he used the chopper in self-defence. This version hardly sat with the agreed facts and was not advanced on the respondent’s behalf either in mitigation or before us.  

The sentence

12.  The trial commenced on 25 November 2009 and was fixed for three days. There was a voir dire on 26 November 2009 as to the admissibility of the statements made by the respondent and it is right to say that the prosecution case relied heavily on the statements because neither victim was available to give evidence.  On 27 November 2009, after the statements were admitted in evidence, the respondent changed his plea to guilty, and admitted the facts proffered by the prosecution.

13.  Having recounted the facts of the case, the judge noted that the respondent was a person of clear record, aged 30 years.  We have seen the two reports placed before the judge. Nothing of particular significance arises from them. Given the claim that he used the chopper in self-defence, they evidence not much sign of remorse.

14.  The judge noted as well a suggestion in the psychologist's report of a feeling nursed by the respondent of inadequacy and inferiority which, said the judge, "no doubt contributed to his commission of the present offences."  He noted that the respondent lived on a boat in a confined environment and because of his residence status was not entitled to wander about Hong Kong.

15.  The judge further noted that there was no sentencing tariff for the category of offence with which the respondent had been charged: the usual range for a s 17 offence was said to be one between 3 to 12 years, a wide range reflecting the fact that the circumstances in which such offences were committed were infinitely varied. That range was referred to in HKSAR v Hau Ping Chuen [2008] 4 HKLRD 673, although that Court acknowledged that there might be offences contrary to s 17 of the Ordinance which called for sentences higher or lower than that range.

16.  The judge then said this:

“ 8. I have taken the following matters into consideration when sentencing.  The attack cannot be said to have been premeditated.  The defendant was suffering from the effects of the attack by the victims on him earlier in the day.  The defendant has a clear record and according to the psychologist his chance of re-offending is low.  The victims had refused to come forward to testify against the defendant thus indicating that they probably did not suffer too much trauma and did not think much about the incident.

9. I have also taken into consideration that the defendant had only decided to plead guilty after I had ruled admissible his cautioned statement, as well as the seriousness of the injuries of the victims.

10. Bearing in mind the range of sentences in relation to s 17 wounding cases, I find that an appropriate starting point for charge 1 is 30 months’ imprisonment. Although I have taken into consideration the defendant’s late plea, I also bear in mind that he is someone of clear record and it is clear from what he had been telling the probation officer and the psychologist that given the defendant’s disposition, he might have honestly believed that he was acting in self-defence and hence insisted on pleading not guilty.  I will grant the defendant the full one-third discount despite his late plea, and sentence him to 20 months’ imprisonment on charge 1.

11. In relation to charge 2, I will adopt a starting point of 18 months’ imprisonment and reduce that to 12 months’ imprisonment upon his guilty plea.  Bearing in mind the principle of totality, I will order that the sentences for the 2 charges to run wholly concurrently.”

17.  It is thus that the judge arrived at a total sentence of 20 months’ imprisonment.

The application

18.  It is said on behalf of the applicant that :

(1) the starting point of 30 months in relation to the first offence was manifestly inadequate and that the judge failed to place sufficient emphasis upon the aggravating features in this case, in particular that the attack was premeditated, that several blows were struck upon highly vulnerable parts of PW1’s body and that the attack was unprovoked;

(2) the judge erred in finding that the attack was not premeditated;

(3) given the fact that the plea of guilty was tendered only after the judge's ruling in the voir dire, the judge erred in granting the usual one-third discount for the plea of guilty;

(4) the overall sentence of 20 months’ imprisonment failed to reflect sufficiently the gravity of the offences committed; and

(5) the sentences imposed fell outside the range that could, on the facts, reasonably be considered appropriate.

19.  The applicant does not seek to challenge the sentence imposed in relation to the second charge, and there is no suggestion that the sentences upon the two charges should be ordered to run other than concurrently.

The response

20.  Mr Beel appeared for the respondent at trial and appears for him in answer to this application.  He has presented conscientious, comprehensive and helpful submissions and has said everything that can reasonably be said on behalf of the respondent.

21.  Mr Beel adopts a realistic approach to the application and concedes that the s 17 offence was indeed a serious one.  He does however take issue with the attack on the judge's finding about premeditation.  Mr Beel points out that the two boats were berthed in close proximity, side-by-side, so that after the earlier events, the parties were living close to each other and that there is nothing to detract from an assumption which might reasonably be made that the notion of the attack, triggered by concern or anger that had been simmering as a result of the earlier events, came upon the respondent as a result of pent-up rage and, in that context, on the spur of the moment.  Indeed, he informs us that that was the thrust of the respondent’s explanation to the police when he was interviewed after arrest.  Mr Beel further asserts that there is nothing to support the applicant’s contention that several blows were struck to the head and neck of PW1.  He suggests that the injuries were, perhaps luckily, superficial in the sense that there is no evidence before the court of underlying injury.  He contends as well that the applicant’s description of the instrument used as one that was very dangerous is an exaggeration.  He accepts that the sentences were lenient but invites the Court to say that the overall result was not manifestly inadequate and he points out that it so happens in this case, because the respondent gave evidence before the judge on the voir dire, the judge had the advantage of assessing this respondent, a respondent of little education described in the psychologist's report, on the basis of a series of tests, as a person of insecure disposition.  He further asserts that the judge has not erred in giving the full one-third discount on account of the plea, saying that it was within the judge's discretion to do so.

Analysis

22.  The principles upon which a court will, upon a review by the Secretary for Justice, interfere with a sentence are well-established.  It suffices for present purposes to say that the court may exercise its power to increase a sentence where the sentence imposed in the court below falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate: see Re Attorney General’s Reference (No 4 of 1989) [1990] 1 WLR 41, cited, for example, in Secretary for Justice v Wong Hong Leung [2010] 1 HKLRD 226 at pp. 231–232.

23.  It is clear to us that this is such a case.

24.  We have seen the photograph of the weapon used; the judge saw that weapon himself in the course of the hearing.  The weapon used is a vicious weapon and the description of it by the applicant as a very dangerous weapon is accurate.  The attacks themselves were serious; in the case of PW1, the chopper was directed to the region of the head as well as to the back and it is precisely this type of attack that can lead to consequences considerably more serious than those which were occasioned in this instance.  PW1’s right ear was largely cut through.  There is a large cut at the side of the neck, a particularly dangerous place for an attack with a sharp weapon; the wound to his back was 6 inches long and the wound to the forearm of PW2 was also 6 inches long.  It is not to be forgotten that, by definition, the first offence was one executed with an intent to cause really serious harm.

25.  It is to be remembered as well that this was an attack visited upon men who were sleeping at the time of the attack.  Certainly PW1 was asleep when he was attacked even though PW2 may very well have been awake when he sustained his injury.  In the case of the attack on PW1, the attack was launched on a man who at the time was entirely defenceless.

26.  The judge’s categorisation of the attack as one that was not premeditated is on its face strange but having heard the submissions of Mr Beel, we are perhaps in a better position than previously to understand what it is that the judge may well have had in mind.  It will be remembered that the respondent told the police upon his arrest that he had acted in a moment of sudden madness.  He had been the subject of earlier provocation by someone whom, we are told today, acted like a bully and was larger in size than the respondent.  The judge had the advantage of having assessed the character and personality of the respondent and had before him the description of him by the clinical psychologist.  The view which the judge probably took was that this was a case different from one in which, with a cool head, someone plans an attack in revenge or perceived revenge or for some other motive.  It was rather, he must have meant, a case of a man living in confined circumstances and in close proximity to someone who had offered him offence and who had permitted his grievance to fester and to build to a point where he lost his head, picked up a weapon, took it to a place nearby and unlawfully released a rage which he had allowed to develop.

27.  The judge was entitled to sentence on that basis.  Yet, that said, this was an attack that took place about five hours after the original incident and, although the men lived in close proximity and it was therefore easier for such an attack to take place upon pent-up rage, the fact remains that the respondent took the chopper to the other boat and attacked two men who were sleeping.  The mitigation thus advanced is valuable in so far as it enables sentencing to proceed upon a fair factual basis, but the value of the mitigation is in this case limited by the fact that hours had passed, that the attack was visited upon defenceless men, and that it was effected with a dangerous weapon upon a highly vulnerable part of PW1’s body.

28.  It is difficult to understand the suggestion made by the judge that the victims "probably did not suffer too much trauma and did not think much about the incident."  One does not know why these two Mainlanders did not come to give evidence.  There may be many reasons and it is pointless to speculate about it.  But having regard to the nature of the injuries, it is unrealistic to conclude other than that at least PW1 suffered considerable pain and that he must have thought a great deal about the incident at the time and after.  There are no medical reports to indicate whether there will be any serious lasting disfigurement.  Nonetheless, one can safely assume that the ear injury will leave some permanent disfigurement, although it is not possible for this court to say how marked in due course that will be.

29.  The judge’s reference to honest belief in self-defence is also difficult to follow in the light of the facts which were admitted.  The suggestion in the reports that the respondent had asserted that he had carried the chopper for self protection when he went to the washroom and was attacked by the two men, was not pursued on his behalf before the sentencing judge and there is no suggestion before us that there is any truth in the picture thus painted.

30.  There is a further oddity in the reasons for sentence.  The judge said, in relation to the facts, that: “Later on in the middle of the night the defendant got a chopping knife from his kitchen and went over to argue and then attacked the victims, causing them the injuries as stated in the facts." The suggestion that the respondent went over to argue is not supported by the facts which were admitted.  Nor was it part of the mitigation advanced by Mr Beel in the court below.  There is some suggestion in the probation officer’s report about a proposed discussion but that was advanced by the respondent in the context of a story which sat ill with the admitted facts and which was never pursued.

31.  It is to be remembered that the maximum term of imprisonment provided by the Ordinance for an offence under s 17 is one of life imprisonment and that for a s 19 offence a maximum of 3 years’ imprisonment.

32.  On the facts agreed it must be assumed in favour of the respondent, that there was a degree of provocation offered by PW1 as against him earlier that day.  The respondent himself called the police and was obviously perceived by others, including PW1 himself, sufficiently to be in the right at that stage to warrant some compensation.  The men lived in close proximity and confined to their boats.  Against this background and in that setting, the respondent’s anger simmered.  This is not for a moment to excuse what subsequently happened but it provides the contextual background which must not be ignored.  It is also to be borne in mind that but for the respondent’s own admission to the police of what had happened, the case may not have successfully been concluded against him, although his subsequent plea of not guilty and the stories he gave to the psychologist and to the probation officer detract from suggestions of remorse.  We bear in mind as well the advantage that the judge had of assessing the respondent’s personality and we assume that it supported the assessment made by the clinical psychologist. 

33.  In all these circumstances, in our judgment, an appropriate starting point in this case upon charge 1 was one of 5 ½ years’ imprisonment.  But for the mitigating factors to which we have referred, the absence of medical reports dealing with the permanence or otherwise of injuries, the absence of photographs upon which we would otherwise be entitled to rely, and the view taken by the judge of the respondent’s personality, a higher starting point would be warranted.  We have to say that the starting point of 18 months in relation to charge 2 was low, but we are not invited to interfere with that.

34.  The respondent did not plead guilty until after the voir dire so that a full one-third discount was not warranted.  We would accord a 25% discount in relation to charge 1 resulting, strictly calculated, in a term of 49½ months’ imprisonment for that offence.  We leave undisturbed the term of 12 months’ imprisonment imposed in relation to charge 2.  It would be appropriate to order those two terms to run concurrently, making a total of 49½ months’ imprisonment.

35.  In Secretary for Justice v Wong Hong Leung, to which we have earlier referred, the Court reminded sentencing judges that they do no favour to defendants by imposing unduly lenient sentences.  This case is a good illustration of how such undue leniency works to the ultimate disadvantage of a defendant.  The sentence which we deem to have been appropriate in this case constitutes a very considerable increase in the sentence imposed by the court below and we notice as well that but for the success of this application, the respondent would be eligible for discharge from prison on 16 August 2010.  

36.  We think it just therefore to effect a further reduction in sentence – this we do by reducing the sentence in relation to charge 1 to one of 42 months’ imprisonment, that is, 3 years and 6 months.  We order that term to run concurrently with the 12 months in relation to charge 2.

Result

37.  Accordingly, we grant the application, quash the sentence imposed in the District Court in relation to charge 1 and substitute therefore a sentence of 3 years and 6 months' imprisonment.  We order that sentence to run concurrently with the sentence of 12 months’ imprisonment in relation to charge 2, making a total of 3 years and 6 months' imprisonment.