HKSAR v. YUEN WAI KUI

CACC280/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.280 OF 2004

(ON APPEAL FROM HCCC NO.160 OF 2003)

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REASONS FOR JUDGMENT

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Hon Tang JA (giving the reasons for judgment of the Court) :

1. The applicant is now 42 years of age.  This is what the probation officer said in his report of 21 May 2004 :

“The gathered information shows that the accused is a dutiful son, a helpful brother, a responsible husband as well as a good father respectively.”

He also had a clear record.  He is married with an 11 year-old son.  He had rectal cancer in early 2001.  He had been operated on and treated with chemotherapy.  He has pleaded guilty to wounding with intent.

2. As a result of the applicant’s assault, the victim is likely to remain in a vegetative state.

3. The judge said the general sentencing range is 3 to 12 years, but that given the nature of the injuries caused, the element of retribution must necessarily be an important one.  She said there has also to be an element of deterrence in the sentence.  She adopted a starting point of 15 years.

4. The applicant was at one time the victim’s employee.  He was owed $9,000 for work done as a decoration worker.  That has been confirmed by a judgment of the Labour Tribunal where the victim was ordered in December 2002 to pay the $9,000 to the applicant on or before 6 January 2003.

5. The assault followed a meeting between the victim and the applicant.  At that meeting the victim was seeking to pay by instalments.

6. The applicant pleaded guilty and most of the facts were agreed.  But, there was also a Newton enquiry.

7. In sentencing the judge said :

“There was an argument developed in the restaurant.  The victim followed the defendant downstairs when the defendant left.  There was no independent evidence as to who threw the first blow, …”

8. The applicant’s case is that it was the victim who struck the first blow.  We think in the absence of a finding by the judge to the contrary, we are entitled, indeed obliged, to proceed on the basis that it was indeed so, giving the applicant the benefit of any doubt.  We also note that according to the agreed facts, it was the victim who “gave chase behind” the applicant.  However, it is obvious that what the applicant did in return went far beyond self-defence.

9. This is how the judge described his action :

“… but there is evidence from the first witness, which I accept, that at the time she saw the incident, the parties were outside the restaurant and the defendant was attacking with fists and feet the victim, who was backing away from him and warding off the blows and punches as best he could by holding his arms up.

It is quite clear from the demonstrations given by PW1 that there was no retaliation by the victim at the time PW1 saw the incident.  She described seeing the defendant using his hands and feet.  The defendant ignored her shouts to stop the attack.  At some point shortly thereafter the victim tripped or fell, and fell to the ground, but nevertheless the defendant continued to attack him.

She described the defendant as stamping on the victim, and to get a better purchase in his task of kicking and attacking him, he held on to the side of a parked truck.

The witness described the defendant stamping on the victim’s upper part, from the head to the top of his legs.  She described it as stamping wildly.  At this point the victim was bleeding from the nose, moaning and moving his arms.

Soon after, however, she described him as lapsing into unconsciousness and certainly the victim was motionless by the time the defendant stopped his onslaught.  During the onslaught the witness, PW1, had a view of the incident at a very close range and it was she who made a 999 report, as a result of which ambulance attention was directed to the victim.”

10. The judge said that the applicant ignored PW1’s warning.  PW1’s evidence which the judge had accepted was that : “she told the defendant to desist and stop the attack because he was going to kill the victim”.

11. Mr Poll, who appeared for the applicant argued first, it has not been clearly proved that the defendant heard what PW1 said.  Secondly, that the judge ought not to have accepted the evidence of PW1 having regard to the differences between her evidence and the evidence of PW2.  Thirdly, the medical evidence showed that the head injury could have been caused when the victim fell.  Fourthly, that the applicant’s action showed how much the applicant had lost control of himself.  He submitted that this was not a premeditated crime and the sentence was manifestly excessive.

12. The defendant did not give evidence in the Newton inquiry.  On the evidence the judge was perfectly entitled to find that the defendant ignored PW1’s warning.  We also believe the judge was entitled to prefer the evidence of PW1 to the evidence of PW2. 

13. Mr Poll submitted that the evidence showed the head injury could have been caused by the fall.  So the judge should not have sentenced the applicant on the basis that it was directly caused by the assault.  But on the basis of PW1’s evidence, which the judge accepted, the judge was entitled to say that the victim was beaten to an inch of his life and to proceed on the basis that it was the assault which caused the brain injury.  We appreciate that the medical evidence showed that the injury could have been caused by the fall but do not agree that on the evidence the judge was not entitled to come to a different view.

14. As for Mr Poll’s fourth point, we agree that it was not a premeditated crime and that the defendant had lost control of himself.

15. Mr Simon Tam leading Ms Peggy Lo, who appeared for the respondent has referred us to cases where starting points of 15 years or higher were regarded as appropriate.  First was the case of Secretary for Justice v. Lam Kai Wah [2000] 1 HKC 738 where a starting point of 15 years was considered to be appropriate for the defendant who pushed someone into the path of a train.  Having regard to the crowded conditions of our train stations, we have no doubt that an offence of that type required serious deterrence.

16. Mr Tam also referred us to two cases which involved the throwing of corrosive acid, namely, R. v. Wong On Lin [1995] 1 HKCLR 224, where 15 years was adopted and HKSAR v. Yu Wai Chiu, CACC300/2000 (unreported).  But then those were unprovoked as well as premeditated crimes.

17. We have been referred to HKSAR v. Tsui Kam Wa & another [2002] 3 HKLRD 393, where a starting point of 12 years for manslaughter by reason of provocation was considered to be manifestly excessive and reduced to 9 years.  There, four young men attacked the deceased and continued to punch him after he collapsed on the ground and lay motionless for between 30 and 90 seconds.  The deceased did not regain consciousness and died two days later.  The circumstances in that case as described in the headnote were these :

“… Ds were among a group of people, including V, the victim, and his girlfriend, at a karaoke bar.  During a dice cup game, D1 threw a dice cup at V’s girlfriend.  Although V did not witness the incident, he later confronted D1 and threw an object at him, which hit him on the head and caused him to bleed.  D1, D2 and two other people, then attacked V and continued to punch him after he collapsed to the ground and lay motionless.  The attack lasted between 30-90 seconds.  V did not regain consciousness and died two days later.  Ds applied for leave to appeal against on the grounds that : it was manifestly excessive; the nature of the attack was spontaneous; no weapons were used; and the duration of the attack was short.”

18. As Fuad VP said in Attorney General v. Lam Yat Sing, CAAR14/1992 :

“… everything will depend so heavily on the particular facts of each case.”

19. Here we are dealing with a father with a young child.  He was the main support of his family.  He had been under substantial stress and was fearful of relapse.  He was owed a substantial sum of money by the victim.  We must assume it was the victim who started the fight.  We know that the defendant left the restaurant pursued by the victim.  The applicant stayed at the scene and was cooperative with the police.

20. It is also quite clear that the defendant was a responsible and self-reliant person.  According to the probation report, he stopped receiving CSSA on 31 July 2002 voluntarily.  He preferred to work to support the family despite his illness.  His wife also worked to support the family.

21. We believe that the learned judge was perfectly right in regarding 3 to 12 years, as the range of sentences for this kind of offence, see Cross and Cheung : Sentencing in Hong Kong.

22. We believe the starting point of 15 years is too high and is not justified by any need for deterrence.  The question here is : given that range, what is the appropriate sentence?  This was an unpremeditated crime.  He was provoked by the victim.  However, the defendant’s retaliation was totally out of proportion.  The victim has been gravely injured and would suffer for the rest of his life.  The sentence must reflect the seriousness of the consequence.  But this case compares well with Tsui Kam Wa where a starting point of 12 years was reduced to 9 years.  There, the court was concerned with a sustained attack by four men.  The circumstances of this case are highly unusual and what the applicant did was entirely out of character.

23. We therefore granted leave and treated the application for leave as the hearing of appeal.  We adopted a starting point of 7½ years.  After allowance for the plea of guilty, we sentenced the applicant to imprisonment for 5 years.