HKSAR v. WOO CHEUNG SIN

CACC 606/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 606 OF 2002

(ON APPEAL FROM HCCC NO. 197 OF 2002)

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

Background

1. The applicant, Woo Cheung-sin was convicted after trial before Pang J and a jury in the High Court of attempted murder and was sentenced to 13 years' imprisonment. He sought leave to appeal against both conviction and sentence.

2. Ms. Moosdeen represented the applicant on his application relating to sentence and he himself argued the application relating to conviction.

Prosecution Case

3. The victim Madam Ching Siu-mui is the applicant's ex-wife. They married in 1983 and have a son. In June 2001, they were divorced and the custody of the son was given to Madam Ching. The applicant was also required to vacate the matrimonial flat, namely Room 417, Lok Shing House, Tsz Lok Estate, Tsz Wan Shan (the flat) in Kowloon by the end of February 2002.

4. On 28 February 2002, Madam Ching was alone in the flat with the applicant and was doing household chores in the kitchen. Suddenly, the applicant put a black electric cord around her neck and pulled it hard. Luckily, Madam Ching was able to slip her fingers between the cord and her neck.

5. Madam Ching asked the applicant why he was doing that and offered to leave the flat herself. The applicant said she did not have to give him the flat and they would both go away together. There was then a struggle and they ended up in the living room. Despite her difficulty in breathing, Madam Ching was able to shout out for help 4 to 5 times before falling onto the floor.

6. The applicant dragged Madam Ching by the cord towards the toilet, then pushed her to the ground before sitting on her to prevent her from shouting. The applicant tightened the cord and tried to cover her mouth with his hand and Madam Ching lost consciousness.

7. When she came around, she found herself in the toilet by the side of a female police officer.

8. A neighbour heard Madam Ching's cry and alerted a security guard. They tried to find out what was happening and they heard the shouting in the flat get weaker. The applicant answered the door and said nothing was happening.

9. The police arrived shortly afterward. The applicant opened the door after repeated knocking and was seen perspiring over the forehead. He also did not respond to questions by the police.

10. Madam Ching was subsequently found lying in the toilet unconscious with her nose bleeding and eyes half-opened. There was an electric cord around her neck with a knot. She was gasping for breath.

11. Madam Ching was saved after a female police officer cut the cord with a pair of scissors. The applicant attempted to flee the flat and was subdued by 2 officers.

Defence Case

12. The applicant denied trying to kill Madam Ching by tying an electric cord around her neck. He said he had an argument with Madam Ching and she picked up a small folding stool to hit him. There was a struggle and Madam Ching bit him.

13. When the applicant tried to pull the stool dragging her with it, Madam Ching cried out "saving life" many times. The applicant managed to get the stool off Madam Ching and she fell to the floor. There was someone knocking on the door and the applicant told him nothing had happened.

14. The applicant said he then lay on the bed resting as he was out of breath. He saw Madam Ching went into the kitchen and came out with a length of electric cord before entering the toilet.

15. As Madam Ching remained in the toilet for a long time, the applicant became suspicious. He tried to open the toilet door, but it was locked. He was able to pry open the toilet door with a screwdriver and he saw Madam Ching with an electric cord around her neck. There was a slip loop to the right of her neck and one end of the cord was attached to the shower curtain rod.

16. The applicant said he tried to loosen the cord but was unsuccessful. He was able to untie the cord from the shower curtain rod and Madam Ching fell forward. He supported her before placing her on the floor.

17. It was then the police knocked on the door and he opened the door for them. He said he took the police to the toilet and told them he was trying to rescue her. The applicant's suggestion was that Madam Ching was trying to take her own life.

18. The experts' evidence contradicted the applicant's story. According to tests they performed in June 2002, there was no hanging point in the shower curtain rod at all. There was also no contact evidence between the cord and any metal rods in the toilet. The condition of the electric cord was inconsistent with the suggestion that it had been stretched with the weight of Madam Ching. The cord simply could not hold Madam Ching's weight.

19. The injuries to Madam Ching's mouth and neck were consistent with the suggestion that her mouth had been covered with a hand and that she had been strangled with an electric cord.

20. The judge had given a comprehensive and balanced summing up to the jury, both on law and on facts. Clearly the jury disbelieved the applicant and accepted the prosecution evidence to convict the applicant.

The Grounds of Appeal Against Conviction

21. In his home-made grounds, the applicant repeated what he told the jury at the trial and said Madam Ching tried to commit suicide by hanging from the shower curtain rail with the electric cord because of financial difficulties and other personal problems.

22. The applicant complained that the judge was unfair to him by commenting that he could not speak proper Cantonese after 46 years in Hong Kong. He said the police did not reveal what he had told them and that the prosecution was wrong in suggesting that he had the motive to murder Madam Ching. He also listed what he perceived to be doubts in the prosecution case against him.

23. In his oral submissions, the applicant again repeated what he had put down in writing. He added that the police did not produce the stool and the screwdriver as exhibits. He complained that the tests conducted by the experts only took place 4 months after the event. He mentioned the tendency of women to pretend to commit suicide and that in view of the height of the shower curtain rod, Madam Ching could not have hung herself therefrom.

24. The applicant emphasized that he did not have any motive to murder Madam Ching as he had a young son and an aged mother to look after.

25. We have considered the evidence and what the applicant had urged upon us. Clearly the jury disbelieved the applicant's evidence and accepted the prosecution case against him. There is overwhelming evidence against the applicant and on such evidence, the conviction against the applicant is inescapable. None of the matters raised by the applicant both in his written and oral submissions could have persuaded us otherwise.

26. We do not find the conviction against the applicant unsafe or unsatisfactory at all. He was rightly convicted and the application for leave to appeal against conviction is refused.

Grounds of Appeal Against Sentence

27. Ms. Moosdeen, on behalf of the applicant suggested that the starting point adopted by the judge was too high and that the sentence would have a crushing effect on the applicant because of his age.

28. Ms. Moosdeen referred to a number of attempted murder cases. These cases suggest that proper sentence for attempted murder ranges from 15 to 20 years' imprisonment. In bad cases of the type, sentences in excess of 20 years were imposed.

29. The applicant is now 65 years old and has a clear record. Clearly he has been working hard to build up a happy family until the marriage broke down.

30. It is indeed very sad that the applicant was convicted of such a serious crime at such late stage of his life.

31. When it comes to sentence for attempted murder, the facts of each case must be looked at. But any attempt to take away someone's life is indeed a most serious and hideous crime and must be severely dealt with irrespective of the background of the defendant.

32. It must not be overlooked that the applicant attempted to kill his wife because of matrimonial discord. Ms. Moosdeen suggested that the offence was committed on the spur of the moment. But according to Madam Ching's evidence which must be accepted as the basis for convicting the applicant, it was a deliberated attack on a helpless woman in the matrimonial flat where she should be able to feel safe.

33. The offence committed by the applicant is one of the highest gravity. Madam Ching was very lucky to survive. But for the timely intervention by the neighbour, the security guards and the police, it was almost certain that Madam Ching would have died of strangulation.

34. It was also urged upon us to reduce the sentence on the applicant on humanitarian grounds in view of his physical conditions. It appears that the applicant is suffering from hypertension, lower back pain and has trouble walking.

35. The judge had already taken into consideration the age of the applicant and his physical conditions. The judge had reduced the 16 years starting point by 3 years.

36. 13 years' imprisonment is a severe sentence, particularly on a man of the applicant's age. But in our view, such sentence is fully justified in the light of what the applicant did to Madam Ching. It is neither wrong in principle nor manifestly excessive.

37. We find no valid basis to interfere with the sentence imposed on the applicant. The application for leave to appeal against sentence is also refused.