HKSAR v. CHAN TIN YAU

CACC 172/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 172 OF 1999

(ON APPEAL FROM DCCC 1207 OF 1998)

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

1. On 23rd February 1999, the Applicant was convicted of wounding Wong Hing-cheong (the victim) with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212, following a trial before Judge Wright in the District Court. A background report was ordered before the judge sentenced the Applicant on 16th March 1999 to three years' imprisonment. He now seeks leave by a notice dated 23rd March 1999 to appeal against this sentence. Originally, it appeared that this was an application in relation to conviction, but Mr. Philip Hau, on behalf of the Applicant, has made plain that this was an error and that the application had all along been intended to be directed at sentence only. As the application in respect of conviction was not pursued, we dismissed it.

2. The case was concerned with an altercation between the Applicant and the victim over some vegetable baskets which had, over a period of time, been the cause of friction between the two men. The victim had complained to the Applicant about the Applicant's employers using baskets belonging to the victim's employer. Both men had responsibility for delivering produce to the market at Tai Ha Street in Kwai Chung, which is the location where the victim ultimately received the serious chop wound which is the subject of the charge.

3. This happened on 22nd July 1998 when the victim saw that some of his employer's baskets were on the Applicant's lorry. A heated exchange followed when the victim went across to the lorry and remonstrated with the Applicant. Significantly, at that time, the victim was holding a long basket hook. However, the hook, although it could have been used in a violent way, never was, and the Applicant remained in the cab of his lorry. Having remonstrated, the victim then walked back to his own lorry which was parked in the vicinity. When he reached it, he saw that the Applicant was taking from the cab of his lorry a large knife that turned out to be the sort that is commonly used for chopping meat. The Applicant then rushed towards the victim and threatened the victim as he stood by the side of his lorry at the door. There was then some pushing between the two men before the Applicant said: "Do you think I won't chop you?" At that moment, the Applicant brought the chopper down on the Victim's left arm causing a deep and serious wound to it. This measured 10 cm. and the X-ray showed that the wound extended into the cortex of the humerus. Happily, the injury will not cause long term disability.

4. It is submitted by Mr. Hau that the sentence of three years' imprisonment was manifestly excessive, and that the judge erred by:

(1) failing to consider provocation as a mitigating feature after the victim had made the Applicant lose his temper by starting the argument while at the same time holding what could have been used as a weapon;

(2) failing to consider one of the purposes of sentencing by not providing a chance to the offender to reform or rehabilitate himself ; and

(3) considering the Applicant's failure to attend court as a relevant factor demonstrating his own recognition of the seriousness of his conduct and, it may be added, by the fact that he fled the scene of the crime as well.

5. The last ground stems from what the judge said when passing sentence to the effect that the Applicant's flight from the scene and his failure to attend his trial demonstrated his own recognition of the seriousness of his conduct. On any view, this was a grave assault and the judge was pointing out that even the Applicant recognised this himself. It may also be that the judge regarded this in some measure as a demonstration in a curious way of remorse on the part of the Applicant when he realised of the dreadful thing he had done. However, what is important is that this remark can have had no bearing on the sentence imposed as a matter which might have increased the sentence. On the contrary, if it did affect the sentence, it was a factor more in favour of the Applicant than against him.

6. The remaining grounds can be taken together. It is plain from the Reasons for Verdict that the judge had the sequence of events clearly in mind when he passed sentence. However, whilst he accepted that the victim had begun the whole incident by remonstrating at a time when he was holding a potentially dangerous weapon, he did go on to say:

"However, it is what happened thereafter that is the real issue."

A little later the judge said:

"Quite clearly, although there had been an altercation between the accused and the victim, the victim had walked away. The matter could well have been left there. However, it is apparent that the accused was annoyed by the attitude of the victim and sought to pursue him having armed himself with the knife. That is the gravest aspect of this matter. Even the accused eventually had to concede that it would have been open to him simply to have let matters lie."

And the judge added:

"I certainly accept that this was not an aggravated attack, in the real sense of the word. There was no premeditation involved. There was an argument between these two men and it is clear from the accused's background that he is a man who is not unfamiliar with violence. The background report suggests him to be short-tempered. He quite clearly lost his temper with the victim."

7. The element of provocation worked both ways on the facts before the judge. On one view, the victim had been provoked by the Applicant's constant use of his employer's baskets. His remonstration was understandable even if it was unwise. He had not caused the Applicant harm by making his vocal complaint, and the ill-tempered response of the Applicant was out of all proportion to what had gone before.

8. It is apparent that the judge had borne in mind all the relevant circumstances and considerations prior to passing sentence. He had been provided, furthermore, with a full background report which, in turn, revealed a number of matters which were beneficial to the Applicant, which the judge took into account.

9. At the end of the day, the judge had to deal with a criminal assault which was far too serious for a non-custodial sentence to be contemplated.

10. We are satisfied that the sentence was an appropriate one to have imposed for this offence and, accordingly, this application is dismissed.