HKSAR v. CHAN Chun-ho

CACC 356/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 356 OF 2003

(ON APPEAL FROM DCCC NO. 133 OF 2003)

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REASONS FOR JUDGMENT

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Hon Woo VP (giving the reasons for judgment of the Court):

Background

1. The applicant was convicted after trial by Deputy Judge W Lam in the District Court of a charge of common assault, contrary to common law and punishable under section 40 of the Offences Against the Person Ordinance, Cap 212 and another charge of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance. The judge imposed a sentence of 2 months' imprisonment on the first charge and a sentence of 31/2 years' imprisonment on the second charge, consecutive. The total sentence came to 3 years and 8 months.

2. Originally, the applicant sought leave to appeal against both conviction and sentence. He later abandoned the application in respect of conviction.

3. On 1 June 2004, his application for leave to appeal against sentence was heard by Cheung JA, a single judge of this court, who refused it on the basis that the sentences were not manifestly excessive.

4. The applicant renewed his application before this court. After hearing him on 27 August 2004, we dismissed the application. Our reasons appear below.

The facts

5. The two offences took place on two consecutive days, 27 and 28 November 2002. The applicant was the owner of a roast meat shop in a market in Kwai Chung. On 27 November 2002, the victim of the first charge, a woman aged 40 years, bought food from the applicant at his shop. There was an argument between the two during which the female victim was assaulted.

6. According to the findings made by the judge, the applicant punched the female victim on the nose, shoulder and chest, inflicting redness over the nasal bridge and sternum and mild tenderness over the left shoulder.

7. The female victim reported the matter to the police. As a result, the applicant was arrested by the police for the offence of common assault and was taken to Kwai Chung Police Station for further investigation.

8. The female victim related to her brother what had happened on 27 November 2002. In the morning of 28 November 2002, the brother went to the applicant's shop with a view to reasoning out the matter with him. The applicant picked up his chopper and the brother on seeing that fled. The applicant gave chase, catching up with the brother and chopping him, inflicting a 10 cm wound on the left shoulder, a wound over the right scalp, a 6 cm chop wound over the right palm with severing of tendons, nerves and the digital arteries, fracturing all the 4 metacarpals (that is, bones connecting the wrist to the four fingers), and fractures of the left frontal and parietal bones.

9. At the trial, the applicant denied both charges. Regarding the first charge, he told the judge that he did not assault the female victim. Regarding the second charge, the applicant's testimony was that the male victim came to his shop, swore at him and punched him on the right shoulder, and headlocked him with his left arm. During the struggle, while the male victim was attempting to reach for the applicant's chopper, the applicant beat him to it. The male victim tried to snatch the chopper from the applicant and the two men pulled and pushed until they reached the stairs of the market building, about 10 feet away from the shop. They fell. The applicant extricated himself and went back into the market. He telephoned the police. He denied attacking the male victim with the chopper, but he thought the chopper had contacted the male victim's shoulder.

10. The judge did not believe the applicant and accepted the male victim's evidence. The male victim received the injuries as stated above and his hairs were found on the chopper in the applicant's shop when the police arrived at the scene.

Sentence

11. In sentencing, the judge took into account the case of R v Tam Lam Wong, Crim App No 559/1988 when imposing a term of 3 1/2 years' imprisonment for the second charge of wounding with intent. He adopted a starting point of 2 months for the first charge of common assault. He also considered a doctor's letter produced in mitigation which stated that the defendant had diabetes and groin and lower back pain. The judge referred to the decision in Yip Kai-foon, FACC 35&36/1999 and Tong Fuk-sing [1999] 3 HKC 332 for the proposition that medical reasons were seldom a basis to reduce sentence.

Grounds of appeal

12. The applicant has written various letters to the court to ask for a reduction of sentence, enclosing a letter from Bishop Joseph Zen pleading for leniency for him. The grounds raised can be summarised as follows:

(1) Personal circumstances of the applicant. Before his incarceration, the applicant was operating the roast meat shop, earning an income to support his family, consisting of a wife and two young children. Not only was he the breadwinner of his family, he also looked after his mother. He was suffering from diabetes and back pain. Since his serving the sentence imposed by the judge, his family has to rely on public assistance for its livelihood. He misses his family members and vice versa.

(2) Remorse. Bishop Zen in his letter points out that the applicant had made a mistake in committing the offences, which were entirely acts on impulse and unpremeditated. The applicant's mistake committed out of irritation had brought adversity and dramatic changes to his wife and children. The applicant had shown genuine remorse for what he had done. At the hearing on 27 August 2004, the applicant told us that he was remorseful.

(3) Arguments on facts. The judge got confused between the first charge and second charge in that he referred to an argument between the applicant and the male victim of the second charge. It is alleged that while the applicant had an argument with the female victim in the first charge, no argument was involved in the second charge. It was the male victim who shouted abuse at him and provoked him. That outraged him and caused him a loss of self-control, consequent on which he attacked the male victim.

13. The applicant stressed to us that he committed the offence in the second charge because the male victim poured abuse at him and acted in a provocative manner. He had no intention to cause harm to the male victim. We need say no more than that this is against the findings of the judge. The judge who had reviewed the evidence of all the witnesses before him very carefully came to the conclusion that the applicant's evidence was incredible and unreliable. We consider that the judge was fully justified in his conclusion not to accept the applicant's evidence.

14. We have grave doubt as to the genuineness of remorse on the part of the applicant. In all the letters that he has written to the court, nowhere is it stated that he was apologetic to the female victim or to the male victim who was so seriously injured by him. While he told us that he was remorseful, he kept on saying that he did not intend to cause any harm to the male victim who had provoked and outraged him. One can easily discern that he is not truly remorseful for what he had done to the male victim.

15. In Tam Lam Wong, the applicant, who was a taxi driver, had an argument with a passenger over the passenger's behaviour, especially for his slamming the taxi door. The applicant lost his temper and went to the boot of the taxi to take out a wine bottle with which he assaulted the passenger on the head. The bottle broke and the applicant attacked the victim with the broken bottle, causing a minor cut to the hand, a more serious cut on the ear, and two cuts on the side of the neck. One of these cuts on the neck was described as "a deep cut wound of 9 cm on the side of the neck", with profuse bleeding. The applicant took off his jacket and attempted to stop the flow of blood. He summoned medical assistance through the taxi radio system. The Court of Appeal refused to interfere with the sentence of 3 years' imprisonment imposed by the trial judge.

17. The present case was to some extent similar to Tam Lam Wong. Apparently, the applicant in the present case lost his temper when he had an argument with the female victim on 27 November, and on 28 November 2002 lost his temper again when the male victim was either reasoning or remonstrating with him as to what he had done the day before. But the facts in the present case are much more serious than those in Tam Lam Wong, in at least three respects. We have come to this view after examining the photographs of the male victim showing the injuries that he had received as well as the photographs of the chopper used in the attack. First, the injuries sustained by the male victim here were much more serious than those inflicted on the passenger in Tam Lam Wong. Secondly, the weapon involved in the present case, a heavy and sharp chopper, was much more deadly than the bottle used by the taxi driver. Thirdly, and we consider this the most serious aspect of the present case, the male victim was attacked both in the front and at the back. The wound over the male victim's right scalp, the fracture of the frontal bone, the 6 cm chop wound over the right palm severing tendons, nerves and the digital arteries and fracturing all the four metacarpals demonstrate that the attacks were in the front. The male victim's other injuries, the 10 cm wound on the left shoulder and the fracture of the parietal bone, show that the attacks came from the back. It will also be noticed that any single one of these wounds, the 10 cm wound on the left shoulder, the wound over the right scalp, the 6 cm wound over the right palm, the fracture of the left frontal bone and the fracture of the parietal bone, would have been very serious, and would have caused any reasonable person involved, even in a heated argument, to desist from carrying out any further attack. The presence of these 5 wounds indicates that either the applicant was oblivious to his attacks involving a great danger to life, or he was reckless as to the consequences of his actions while armed with the heavy and sharp chopper. Moreover, the wounding offence was committed after the applicant had been arrested for common assault the day before and he had been brought to the police station for investigation. Obviously, the action taken by the police on 27 November 2002 did not give the applicant a sufficient lesson to control his temper or to behave in a civil manner as a member of the community.

18. In all the circumstances, the terms of 3 1/2 years' imprisonment imposed on the applicant for the second charge cannot be criticised, save that perhaps, it is too lenient to him.

19. The two offences were committed on two different days affecting two different persons. In our judgment, the judge was perfectly entitled to order that the sentences for the two charges to run consecutively.

20. The judge was also correct to say that the illnesses, if not ailments, suffered by the applicant should seldom be a sufficient basis for reducing sentence.

21. Regarding the circumstances of the applicant's family, especially his two young children, we cannot help but sympathise with them for their having lost the applicant's company and also his financial support. However, the applicant should have considered their situation before committing the serious crime of wounding with intent. He had caused severe injury to the male victim whose condition after the attack was so serious that he had to be immediately operated upon when arriving at hospital and had to remain in the intensive care unit for three days, with follow-up treatments in physiotherapy and occupational therapy for some time. If the applicant had not considered this before, he should think about the pain, suffering and risk of loss of life that must have been suffered by the male victim consequent upon his dreadful and callous attack on him with the chopper.

Conclusion

22. For the above reasons, it was correct for Cheung, JA to have refused leave, and we likewise refused the application for leave to appeal against sentence.