THE QUEEN v. CHOI WAI HO

IN THE COURT OF APPEAL

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J U D G M E N T

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Fuad, V.P. (giving judgment of the Court):

1. The Applicant, Choi Wai Ho, appeared before the High Court (Judge Sharwood sitting as a Deputy Judge of the High Court, and a jury) on an indictment containing four Counts. In Count 1 he was charged with attempting to murder a man called Chan Sai Sing and in Count 4 (alternative to Count 1) with attempting to wound him with intent to cause grievous bodily harm. Count 2 charged the, Applicant with the attempted murder of his wife Chan Yin Fong. In Count 3, laid as an alternative to Count 2, he was charged with wounding her with intent.

2. The Applicant pleaded not guilty to the attempted murder Counts. His preferred plea of guilty to the alternative offence of wounding his wife with intent (Count 3) was not accepted by the Crown, and the trial proceeded.

3. On the sixth day of the trial (23rd May 1988) the Applicant was formally re-arraigned on Counts 3 and 4. He pleaded guilty to Count 3 and this plea was accepted by the Crown as was his plea of guilty to the lesser offence of common assault in relation to Count 4. Thereafter, upon directed verdicts, the jury found the Applicant not guilty on Counts 1 and 2, guilty on Count 3 and guilty of common assault in respect of the offence originally charged in Count 4.

4. The Applicant was, on 8th June 1989, sentenced to 21 months' imprisonment on Count 3 and to a concurrent sentence of 6 months' imprisonment for the common assault offence. He now seeks leave to appeal against the sentence imposed on Count 3.

5. The Applicant is now nearly 39 years of age and was working as a night-shift taxi driver. He married the victim of the graver of the two offences he admitted in 1978, and later adopted the three children of her former marriage, one boy and two girls. The Applicant told the probation officer (who provided a helpful report which was before the judge) that the marriage was a happy one until his wife took up hawking in 1986 and then began to behave indiscreetly with the man who was the victim of the assault charge and with another man he named, in essence by being over-friendly with them. Apart from what he had seen of their association with his own eyes, he had heard rumours that his wife had visited Macau with the second man on two occasions.

6. To the probation officer, the Applicant's wife painted a less rosy picture of their marriage. Even before her husband had accused her of "having boyfriends" (and she denied any impropriety with the two men concerned) there was great bitterness and friction between them over financial matters, the disciplining of their son and how the family should spend their leisure time.

7. The parties consulted a solicitor about a possible divorce, and separated In mid-September 1987. The Applicant who himself first suggested the separation, moved into a flat recently purchased by his wife and paid her rent for his occupation. It was common ground that despite the separation the Applicant had assaulted his wife on one occasion in the street (he slapped her on the face) when he saw her with one of the two men.

8. The offences to which the Applicant pleaded guilty arose out of an incident which took place in the very early hours of 21st December 1987. At about 2:00 a.m., the Applicant's wife was walking, home in company with Mr. Chan Sai Sing after they had a snack together. They were neighbours When they got near a zebra-crossing in Tuen Mun, Mr. Chan noticed the Applicant's taxi parked by the side of-the road about 30 metres away. The Applicant's voice was heard from the taxi shouting out insulting and threatening words. The couple then saw the taxi being driven at them. They ran up some steps which led from the side of the zebra-crossing to the pavement. Mr. Chan fell over on the steps but managed to escape being hit.

9. It was not very clear whether or not the Applicant's wife was struck by the vehicle but we are told that her evidence was to the effect that she too, managed to escape being hit and fell down on the steps on the other hand, the evidence of what was seen at the spot where the incident took place gave some indication that she might indeed have been struck by the vehicle.

10. The Applicant's wife was taken to a nearby clinic and then to the Princess Margaret Hospital. She was found to have lacerations on the right side of the back of her head, near the inner corner of her left eye and above her upper lip. Her wounds were stitched up. She was kept in hospital until 26th December for X-rays and other tests but fortunately no more serious injuries were discovered.

11. After he had driven his car at his wife and the other man, the Applicant drove off at speed and reported to the Tuen Mun police station. He told the police that he had bumped and injured his wife on purpose with his vehicle and that he had wanted to "bump her to death". Through his counsel his explanation for not having stopped to attend his wife was that he was frightened by the angry looks on Mr. Chan's face.

12. Mr. Laskey who appeared for the Applicant before the trial court, as he does before us, suggested to the judge that when things had cooled down and, with the passage of more time, it might well be that the Applicant's wife would take him back. She had visited him on remand three days earlier and had promised to attend Court on the day sentence would be passed, with the children. She is in Court today and we are told that she still thinks that after the passage of further time she might find it possible in her heart to return to her husband and it must be said that while she denied infidelity, she accepted that her conduct might have led her husband to suspect her because she had not always been discreet.

13. In addressing the Applicant before sentence, the judge said that it was obvious that his behaviour had been precipitated by his belief that his wife had been behaving improperly and that over a period of time he had worked himself into a very great range. He went on to say:

"Nevertheless, you planned to attack her, and you awaited an opportunity to do so. This was not an impulsive spur of the moment incident, although as I say, I accept that over a period you had become extremely upset."

14. The judge pointed out how serious was the offence of wounding with intent, with its maximum sentence of life Imprisonment. However, he said he proposed to be extremely lenient. Taking into consideration the pleas of guilty, he would accept that the defendant was genuinely remorseful.

15. The judge added that he had noted the defendant's conduct after the incident when he had immediately driven to the police station. He had also noted what the Probation Officer had said about his wife being ready to forgive him despite the rather nasty scar which was left on her face. We are happy to hear today that the scar is not so prominent as it was. Nevertheless said the judge, the offence was too serious for anything other than a custodial sentence. The judge, in imposing the sentence of 21 months' imprisonment, indicated that had the defendant not pleaded guilty, he would have imposed a sentence of about three years.

16. Mr. Laskey has submitted that t he judge erred in concluding that the Applicant had planned to attack his wife and had awaited an opportunity to do so, and further that the three years' imprisonment was too high as a starting point in the light of the mitigating circumstances to which the judge gave insufficient weight.

17. Clearly, the judge having heard the evidence of the two victims of the attempt to run them down, had come to the conclusion that the evidence pointed to a planned attack - in other words, a premeditated attack Mr. Laskey suggested that such evidence did not point irresistibly to this conclusion although he accepted it as a possible inference. We would observe that since the judge had not heard the Applicant's evidence it might have been better had the Crown and defence counsel tried to agree the material facts upon which the judge could base his sentence.

18. It is abundantly clear that the Applicant was motivated by jealousy, one of the most primitive and destructive of human emotions. The extent of his jealous rage can be measured both by what he did and by what he told the police about his intentions. Certainly, there was no sign of remorse when he reported to the police. His suspicions about his wife's, infidelity was no new thing; he had been obsessed by it for many months and even if his act that morning was not proved to have been premeditated in the real sense of the word it was deliberate and, it must be said, dangerous and cruel in the extreme.

19. We have heard an able submission by Mr. Laskey but we are unable to say that the sentence was, in any way, wrong in principle or manifestly excessive. As he recognises the cases he cited to us were merely examples of sentences imposed in wounding with intent cases and it is difficult to extract any clear principle from them. In our judgment, if the sentence erred at all it, might be said to have erred on the side of leniency.

20. For these reasons we dismiss the application for leave to appeal against sentence.