HKSAR v. KAN WAI MAN

CACC 503/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 503 OF 2003

(ON APPEAL FROM DCCC NO. 8 OF 2003)

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

1. The applicant, Kan Wai-man appeared before Judge Wright in the District Court on a charge of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212.

2. The applicant initially pleaded not guilty to the charge. However, he changed his plea at the close of the prosecution case and after the judge ruled that he had a case to answer.

3. The judge adopted a starting point of a six-year imprisonment and reduced the sentence by one year on account of the late guilty plea, resulting in the final sentence of a five-year imprisonment.

4. The applicant now seeks leave to appeal against sentence.

5. The applicant had enjoyed a relationship with Ms So Man-chi, which turned sour after Ms So became friendly with the victim, Mok Wing-ho (Mok).

6. There was a meeting between the applicant, Ms So and Mok to sort out the triangular relationship, but it failed to resolve the issue satisfactorily.

7. Ms So and the applicant arranged to meet near the Tai Po Centre at midnight on 3 and 4 March 2002 in order to return items that had passed between them during the course of their relationship.

8. Mok considered it necessary to accompany Ms So for the meeting. He even arranged for his brother (Wing-cheung), Wing-cheung's girlfriend and another friend to go together.

9. Initially, it was Ms So and Wing-cheung's girlfriend who went to meet the applicant. Later Wing-cheung and the other friend also went, whilst Mok waited in the car. On seeing that they had not returned after some time, Mok himself approach the applicant.

10. When Mok saw the applicant arguing with Ms So, he intervened. It was at that stage that the applicant put down the two bags that he was carrying and took out a knife or a sharp instrument from one of the bags and moved towards Ms So.

11. Mok pushed Ms So aside and the applicant then stabbed Mok once at his right wrist.

12. Mok tried to flee but was pursued by the applicant and three to four other people; one of them was holding a bottle.

13. Mok was caught and was struggling with the applicant when the one with the bottle tried to hit him.

14. Mok was able to regain his feet and ran off. However, the one holding the bottle caught him and pushed him onto the ground. The applicant then arrived and stabbed Mok on the left bicep. The applicant further took hold of Mok's collar to lift him partially off the ground before stabbing him a number of times around his back. The applicant only stopped when the person with a bottle told him so.

15. Mok suffered serious injuries and was hospitalized for five days, although none of the injuries was likely to have any permanent adverse effect.

16. The medical report described his injuries as "multiple stab wounds over the chest, back and left lower limb". There was left pneumothorax and a mild left pleural effusion with a small amount of gas in the chest wall. The chest drain was only removed on the day when Mok was discharged from the hospital.

17. The judge described the attack as premeditated and "a vicious one by an armed man accompanied by a number of other men, one of whom was also armed, on a single person".

18. The judge further pointed out that it was a remorseless attack and that the applicant had half raised Mok from the ground in order to inflict the multiple stab wounds.

19. The applicant was aged 27 at the time of the offence. He came from a law-abiding family and was gainfully employed for the past 10 years.

20. Although the applicant has one previous conviction at the age of 12, the judge had rightly treated him for all intents and purposes as a person with a clear record.

21. Mr Choy, on behalf of the applicant complains that the sentence is manifestly excessive. Mr Choy refers to AG v Li Fung Leung [1987] HKLR 176, AG v Sin Wai Lun [1998] HKC 431 and R v Nguyen Quang Thong [1992] 2 HKCLR 10 to support his contention that the proper starting point should be 4 to 4 1/2 years' imprisonment.

22. In Li Fung Leung, the victim was the girlfriend of the first respondent. The first respondent, together with others attacked the victim after she left him for another man. The victim suffered a penetrating wound in the lower abdomen, four superficial laceration wounds on her back, one superficial laceration on her face and one laceration of her abdominal wall. Li VP considered a proper sentence on the first respondent should be four years' imprisonment.

23. Sin Wai Lun (supra) concerns a defendant who drove a vehicle used in a gang attack involving three victims. A two-year sentence was considered to be appropriate on a review.

24. Nguyen Quang Thong (supra) involves an attack in a Vietnamese Detention Centre. The victim suffered injuries at the lower end of the scale of grievous bodily harm. This court opined that a starting point of three years to be appropriate.

25. Mr Choy suggests that the attack was motivated by passion. It could well have been. However, we are not persuaded that it was a mitigating factor.

26. Grown-up men such as the applicant should be able to handle the breaking up of a relationship sensibly. Attempt to injure a former partner or his/her new companion out of jealousy or sheer spite must be deterred.

27. The unprovoked attack was clearly a premeditated and a vicious one. The exact nature of the weapon used in the attack was unknown. However, it must be a lethal instrument brought by the applicant in order to inflict injuries on Mok or Ms So.

28. The fact that Mok recovered well from his injuries could not be a strong mitigating factor either, as some of the wounds were fairly deep and at least one of them penetrated Mok quite substantially. The judge described it as "sheer luck" for Mok to escape any permanent serious injuries.

29. The decisions of this court, made quite a long time ago, to which Mr Choy drew our attention, were in no sense guideline cases.

30. Circumstances will inevitably vary from case to case and there are very few cases where the facts are identical. Each case must be decided on its own facts.

31. In our opinion, the starting point of six years adopted by the judge, albeit on the high side, was not manifestly excessive and the reduction by one year to reflect the late plea was a proper one in all the circumstances.

32. Accordingly, the application is dismissed.