HKSAR v. CHU SZE WING

CACC 289/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 289 OF 2011

(ON APPEAL FROM DCCC NO. 172 OF 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Hartmann JA (giving the Reasons for Judgment of the Court):

Introduction

1.  On 8 July 2011, after trial in the District Court before Deputy District Judge Merinda Chow, the appellant was convicted of the offence of wounding with intent, contrary to s. 17(a) of the Offences against the Person Ordinance, Cap. 212.  He was sentenced to five years’ imprisonment.

2.  The appellant originally sought leave to appeal both conviction and sentence but abandoned the appeal in respect of conviction on 20 December 2011 when he was granted leave by Stock VP to appeal sentence.

3.  When the matter came before us, we allowed the appeal, reducing the sentence by one year from five years to four years.  We said that we would give our reasons later and do so now.

The facts

4.  The conviction of the appellant arose out of an incident which took place at about 6.45 in the morning of 3 January 2011 in an apartment in Sai Ying Pun.

5.  The apartment was divided into 12 wooden cubicles, each with its own door.  The appellant occupied one of these cubicles, his immediate neighbour being a man named Ho.  There was bad blood between the appellant and Ho.  They had exchanged words on at least two earlier occasions concerning domestic matters: creating a disturbance at unsocial hours and the like.

6.  On the morning in question, having completed the night shift as a security guard, Ho returned to his cubicle.  The evidence suggests that, in settling into his cubicle, Ho created what the appellant considered to be an unnecessary disturbance.  Enraged, the appellant, aged 62 at the time and unemployed, seized a chopping knife, stepped out of his cubicle and banged on the door of Ho’s cubicle.

7.  When Ho opened his door, the appellant used the chopping knife to strike at Ho’s face and head.  In so doing, the appellant inflicted three wounds: a 3cm wound to Ho’s forehead, a 5cm wound to his right cheek and a 4cm wound to the left corner of his mouth.

8.  Ho, several years younger than the appellant, managed to grab the appellant’s wrist, preventing him from inflicting any further blows.  Thereafter, for an extended period of time, the two men remained frozen in a form of embrace, neither prepared to disengage for fear of what the other may do.  It was only after the police arrived that they were parted.

9.  Much blood was spilt at the scene.  However, the wounds sustained by Ho were not serious and he was released from hospital that same day.  Although photographs produced at trial revealed a limited degree of scarring, there is no suggestion of any permanent disability.

The approach of the judge

10.  In imposing sentence, the judge said the following (paras 13 - 18):

“To begin with, I disagree that the offence was not premeditated. The defendant prepared with him a chopper to attack [Ho] without saying a word.

[Ho] did not expect the defendant came to attack him on his face. [Ho] had nothing to protect himself. He was a defenceless victim.

At the time of the attack, [Ho] suffered serious bleeding as these can be seen in the photographs…

Despite the fact that [Ho] suffered serious bleeding, the defendant would not let go of him. That means the defendant refused to let [Ho] be treated by doctors as soon as possible.

At the time of the trial, the three scars on [Ho’s] face were still visible.

There is no doubt that the living condition in Hong Kong is getting more and more crowded than before, neighbourhood relationship in such a small flat could sometimes turn very tense, but that is not an excuse to resolve the problem by way of violence.”

Relevant authorities

11.  A number of recent judgments of this Court have looked to the assessment of appropriate sentences in cases of wounding with intent, contrary to s. 17. See, in particular, Secretary for Justice v Hung Kar Chun [2011] 1 HKLRD 1083; Secretary for Justice v Yu Yat Sang [2011] 1 HKC 155; Secretary for Justice v Hau Ping Chuen [2008] 4 HKLRD 673 and HKSAR v Fan Tak Wan [2007] 5 HKC 50.

12.  What emerges from these judgments is that there is no sentencing tariff. Each case is dependent on its own circumstances.  However, the usual range will be between 3 to 12 years’ imprisonment.

A consideration of the judge’s approach

13.  In seeking the appropriate sentence in the present case, the judge made reference to Secretary for Justice v Hau Ping Chuen (cited above), a case in which the victim, who was unarmed and was surprised by his assailant, received a cut to his abdomen and was stabbed in the left inner thigh.  Comparing the factual circumstances of Hau Ping Chuen with those of the present case, the judge commented:

“The Court of Appeal said that this is a serious offence and five years is the least starting point.”

14.  The judge herself then chose five years as the appropriate sentence in the present case.

15.  With respect to the judge, while we certainly see the very real similarities, we do not see that the present case can be said to be in all respects on all fours with Hau Ping Chuen.  While in both cases a potentially lethal weapon was used (a chopper in the present case and a knife with a 5½ inch blade in Hau Ping Chuen) and while in each case the victim was unarmed and caught by surprise, it is apparent that the assailant in Hau Ping Chuen pressed home his attack with a greater degree of savagery, not only inflicting two wounds but in addition, despite the victim’s flight from the scene while crying for help, chasing after him an attempt to inflict further injury.  As a result of the savagery of the attack, the victim in Hau Ping Chuen was hospitalised for three days while in the present case the victim was released from hospital the same day.

16.  There is another material aspect of the present case in respect of which we are drawn to a different view to the judge at first instance; that is in respect of the finding on her part that the appellant’s attack with a weapon was premeditated.  In finding that there had been premeditation, the judge said that the appellant “prepared with him a chopper to attack [Ho] without saying a word.”

17.  To use a somewhat antique term, premeditation requires ‘aforethought’, that is, some sufficient degree of deliberation or planning.  In the present case, the evidence was that, on hearing Ho in the next cubicle and believing him to be causing a disturbance again, the appellant lost his temper, seized the chopper and strode a matter of no more than a couple of paces to Ho’s cubicle where, having banged on his door, he then attacked him.  Before us, the appellant said that he had acted “impulsively”: that would appear to be an apt description.  On the evidence, the time lapse between the appellant’s loss of self-control, his seizing of the chopper and his attack would have been a matter of seconds only.  The fact that the appellant attacked his victim “without saying a word” is neutral, pointing neither to premeditation nor to a lack of it.

18.  In giving the judgment of the court in Secretary for Justice v Hung Kar Chun (cited above), Cheung JA gave a practical definition of what, in the circumstances of that case, constituted the aggravating feature of premeditation:

“This was not purely an unpremeditated case. It was not the case that the respondent offhandedly picked up an object at the scene to attack PW1 when he was engulfed in rage. His acts were planned and malicious: after the two had an argument over the phone, the respondent left the mall and took a 10 minutes’ walk to buy a weapon before returning to the mall. On the way, he even phoned his girlfriend, making threatening remarks to PW1. This is different from the circumstances where a person attacked another person having lost control of his emotions as a result of a dispute.”

19.  Having regard to the factors set out above – particularly the fact that, on the evidence, the attack was not premeditated and that fortunately the injuries sustained by the victim were not serious – we are of the view that the sentence imposed was manifestly excessive and that an appropriate sentence should have been one of four years’ imprisonment, that being the sentence which we imposed.