HKSAR v. LEE WAI KEUNG

CACC230/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 230 OF 2009

(ON APPEAL FROM HCCC NO. 20 OF 2009)

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J U D G M E N T

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Hon Saw J giving judgment of the Court :

1. On 26 June 2009, the applicant was convicted after trial of a charge of attempted murder.  On 29 June 2009, he was sentenced to be imprisoned for 13 years.  The applicant timeously lodged notices of application for leave to appeal conviction and sentence.  On 17 March 2010, he filed a notice of abandonment of his application for leave to appeal conviction.

2. This is his application for leave to appeal sentence.

3. The indictment contained two counts, the first count was attempted murder.  The second count, wounding with intent to cause grievous bodily harm was an alternative to the first count.  The victim in each count was the same namely Madam Leung Siu Chun (“Ms Leung”). 

4. The applicant pleaded not guilty to the 1^st count and guilty to the 2^nd count.  The prosecution did not accept that plea in satisfaction of the indictment.  The applicant was convicted unanimously of attempted murder.

5. Ms Leung and the applicant were known to one another.  They had in the past worked together at the same finance company.  A relationship developed.  For a time they lived together.  By 12 June 2008 problems had arisen in their relationship and Ms Leung was living by herself in a flat on the 20^th floor (Room 2002) Ming Wik House, Kin Ming Estate, Tseung Kwan O — (the flat).

6. It was Ms Leung’s evidence that one of the matters over which they had quarreled in the past was money.  She said the applicant had borrowed money from her and failed to repay it.

7. On the evening of 11 June, the applicant went to where Ms Leung lived.  He was apparently drunk and the police were called.

8. The following morning at about 8:30 a.m. the applicant called Ms Leung.  He told her that he was coming to her premises to repay the outstanding debt.  It appears that the situation was then harmonious.  The applicant slept at her home until 2:00 p.m.  They went together after that to buy or rent a videotape.

9. Matters however deteriorated after they returned to the flat.  There was a telephone call between the applicant and his former wife.  Ms Leung herself spoke to the applicant’s former wife.  As she was in the process of explaining to the former wife that she had separated from the applicant, he for no apparent reason stabbed her with a vegetable peeler.  Having done this he went into the kitchen where he took hold of a chopper, this he used in an attempt to remove the safety grill attached to the window.  In the course of doing this, the applicant was saying to Ms Leung that “they would die together”.  His attempts to remove the safety grill with the chopper failed.  He then took from the kitchen what was described as a key or a screwdriver.

10. He proceeded to undo the screws to the safety grill with this.  Ms Leung was in the meantime trying to call the police for help.  She made one call to the 999 emergency number but the operator was unable to hear properly what she was saying.  Alerted to the fact that she was attempting to make a telephone call the applicant struck her on the legs with the chopper.  The applicant continued to remove the screws from the safety grill.  Ms Leung again tried to call the 999 emergency number.  The applicant struck her again with the chopper.  He threw her mobile telephone out of the window and having by this time succeeded in removing the safety grill — as the judge said in her summing-up :

“(he) put down the chopper and said that he would grab her and they would die together.  He lifted her up and went to the window saying ‘die together’.  He was lifting her out of the window.  He failed to throw her down because she struggled.  She shouted for help.  At some stage half of her body was out of the window.  She struggled and kicked the accused.  She grabbed hold of the window and managed to get back in.”

11. By the time Ms Leung had managed to struggle back into the apartment, the police had arrived and were knocking at the door.  She tried to open it.  The applicant chopped her again.  This time on the face. 

12. Eventually officers from the Fire Department, who were with the police forced the door open and the applicant was arrested. 

13. A Medical Report prepared by Dr Warren Heung Wang Yan showed that the victim had sustained a number of injuries, those injuries were :

“Left skin : 3 cm oblique laceration, involving subcutaneous layer; 5 cm oblique laceration, musclefacia lacerated, 1 cm notch involving the anterior tibial cortex; multiple superficial lacerations.

Right arm : 4 cm oblique laceration, triceps muscle fascia lacerated; 1 cm oblique laceration down tosubcutaneous layer.

Right forearm : 4 cm laceration down to subcutaneous layer.

Left palm and forearm : left 3^rd web 5 cm deep laceration, complete cut of radial digital nerve and artery of left ring finger; 2 cm superficial laceration left thenar skin; 3 cm and 2 cm superficial lacerations on extensor surface of forearm, involving subcutaneous fat only.

Right forehead 3 cm deep laceration, superficial bone crack over right side skull bone.

Left eyebrow 1.5 cm superficial laceration.”

14. An emergency operation was required to repair those injuries.  Ms Leung stayed in hospital for seven days.  The injuries were quite obviously serious.

15. It was accepted in the trial that Ms Leung had sustained these injuries at the hands of the applicant.  He said that he had been provoked in to doing this because Ms Leung had, after speaking to his former wife on the telephone, said words to the effect that she would “harass her (that is the former wife) and his daughter in the future.”  This and the fact that she had previously sent messages to him which included references to his daughter who was dying in hospital caused him to lose his temper and attack her.  He said he wanted to teach her a lesson. 

16. He said having stabbed her he wanted to scare her further so he took the chopper and attempted to pry open the window safety grill saying as he did “dying together” “grab her and die together”.  His exact words when he gave evidence were “grabbing her and going downstairs”.  Eventually using a hexagonal screwdriver, he removed the window safety screen.  This, he did he said to scare Ms Leung.  He wanted her to think that he was crazy.  At one point he went into the kitchen and turned on the gas of the stove. 

17. Eventually seeing that Ms Leung was at the window shouting for help, he then went and closed the window himself.  Throughout all of this he said he was scolding her and this continued until the police arrived.

18. The substance of the applicant’s defence was that at no time did he attempt to push Ms Leung from the 20^th floor window and that whilst he had in essence said to her that he would do just that, this was not his intention.

19. This account was at odds with the evidence of one of the police officers who was watching from a nearby flat and saw Ms Leung half way out of the window struggling to get back inside.  It is perhaps not surprising that his account was rejected by the jury.

20. The verdict was unanimous and at its core is the finding that the applicant intended to kill Ms Leung that day not to scare her or to teach her a lesson.

21. In the course of mitigation it was said on behalf of the applicant that his attack upon Ms Leung was not premeditated and that Ms Leung, having said to the applicant that she would harass his daughter, when taken together with the text messages sent to his mobile telephone in early June was provoking conduct on her part.

22. In addition to the above, it was emphasized in mitigation that Ms Leung had forgiven the applicant and had written to him to this effect.

This application

23. The substance of this application is that the judge passed a sentence that was manifestly excessive in all of the circumstances, because she failed to take into account or properly take into account the following matters :

“a)  the lack of any planning and/or premeditation in the commission of the offence on the part of the Applicant;

b)   the provocation/provoking conduct, endured by the Appellant before and immediately prior to the commission of the said offence;

c)   the mitigation advanced on behalf of the Applicant;

d)   the remorse shown by the Applicant; and

e)   the lack of any really serious and/or life threatening injuries sustained by the complainant, Madam Leung Siu-chun (PW1).”

Discussion

24. At the outset we would observe that attempted murder is a very serious offence.  To convict, the jury must be satisfied that the defendant’s intention was the death of his victim.  We also observe that there are no sentencing guidelines for this offence.  Each case must be determined on its facts.  The facts in the instant case are such that had Ms Leung not been able to struggle back in through the window she would surely have died.  

25. As to premeditation it is apparent from some of the authorities before us that where there has been premeditation in the cases of attempted murder starting points for sentence in excess of 13 years have been approved. 

26. In HKSAR v Yip Chu Sum, CACC367/2001, the Court of Appeal indicated that a starting point for sentence of 16 years was appropriate for a taxi driver who lay in wait for and attacked a fellow taxi driver with a spanner, intending to kill him.  In that decision, the Court of Appeal emphasized that attempted murder is by definition a very serious offence.

27. As to the assertions made that the judge gave insufficient weight to the provoking conduct of Ms Leung, it is to be remembered that Ms Leung rejected the suggestions made in cross-examination that she had on that afternoon and immediately prior to the attack threatened to harass the applicant’s daughter.  The applicant’s account of the events of that day was rejected by the jury.  The effect of any earlier provoking conduct, if there was any, must be looked at in the light of what appeared to be a reconciliation of their differences that very morning.  Whilst it may have been that Ms Leung had behaved in a confrontational manner in the past, on the morning of 12 June 2008, her evidence was to the effect that their differences were in part at least behind them.

28. Even accepting for the sake of argument that she had provoked the applicant, as he suggested, his response was out of all proportion to that and we are satisfied that the judge correctly accorded to this and the lack of premeditation sufficient weight.

29. The proposition that insufficient weight had been given to the fact that Ms Leung has forgiven the applicant is likewise without substance.  Given the gravity of the applicant’s offence, the forgiveness of Ms Leung can carry little if any weight.  We are satisfied that the judge afforded it sufficient.  

30. The offence of attempted murder can be committed in many ways.  It is always as we have earlier observed a serious offence.  Some cases are more serious than others because of the nature and extent of the injuries sustained by the victim.  Some cases are more serious by reason of the fact that the course adopted by the accused would almost inevitably have resulted in the death of the victim had there not been an intervention.  In the instant case, both aggravating factors are present.

31. The injuries sustained were serious and death was almost a certainty had she fallen from the 20^th floor flat.  We do not consider that the sentence of 13 years’ imprisonment can properly be criticized.  It is neither wrong in principle nor manifestly excessive.

32. The application for leave to appeal sentence is refused and the appeal dismissed.