HKSAR v. CHAN CHUN TAT

CACC 317/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 317 OF 2012

(ON APPEAL FROM HCCC NO 441 OF 2011)

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REASONS FOR JUDGMENT

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Hon McWalters J (giving the reasons for judgment of the court):

Introduction

1. On 2 August 2012 the applicant was convicted on his own plea by V Bokhary J of the offence of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap 212.  He was sentenced the same day to a period of 8 years’ imprisonment and he now applies for leave to appeal against that sentence.

The Circumstances of the Offence

2. The victim of the offence was the applicant’s wife who was, at the time of the offence, aged 23 and had a one year old son by the applicant.  By the charge the applicant was alleged to have unlawfully and maliciously wounded her with intent to do her grievous bodily harm.

3. At the time of the offence the applicant was living with the victim, together with the applicant’s parents, in a three storey village house in Tai Po.  The applicant was a ketamine addict and his addiction had often led to quarrels between he and his wife.  That being said there was no past history of violence by the applicant toward his wife.

4. The events leading up to the commission of the offence commenced with the evening of 10 June 2011 when the applicant asked his wife for a divorce as he was upset that she had dined with another male on 6 June 2011.  The applicant asked his wife to pack up her things and leave the house.  This she did and she stayed at her parents’ home in a housing estate in Fanling.  She took her one year old son with her.

5. Subsequently, on 13 June 2011, the applicant contacted the victim with a view to trying to resolve their problem.  At midnight that day he came to his in-law’s flat to have a meeting with his wife.  She repeated the request she had previously made to him a number of times in the course of their marriage that he quit his drug addiction and she made this a condition of any reconciliation. At the end of the meeting they had still not reached any conclusion and the applicant returned home.

6. At 1.30 pm the following day the applicant had lunch with his wife after which they returned to his house to continue their conversation.  The victim had a nap in their bedroom on the first floor of their house and later that evening informed the applicant that she had to return to her parents’ home to look after their son.  The applicant asked her to remain with him for a bit longer and she agreed and they continued talking.  The applicant’s wife said that she found him to be conscious and believed he had not taken any drugs. They continued talking until 9 pm when the wife told the applicant that as it was late she would have to leave.  The applicant asked her for a hug and they sat on the side of their bed with the applicant holding her in his arms.

7. Suddenly the applicant grabbed his wife around the neck with his right hand.  She struggled and managed to force the applicant to release his hand from her neck.  But then the applicant used his left hand to grab her neck, causing her to suffocate.  They then both fell onto the floor.  The applicant did not release his hand from his wife’s neck and as he held on to her neck he kept repeating “I am sorry.  I do not want this”.  His wife continued to struggle asking the applicant to calm down and all the while trying to escape his grasp.  She finally managed to do so and ran to the balcony of the bedroom.  She kept talking to the applicant from the balcony, asking him to calm down but he did not respond and just remained sitting on the bed. Meanwhile, the wife called the applicant’s father and asked him to return to the house urgently.

8. As the applicant remained sitting on the side of the bed, the wife returned to the bedroom to continue pleading with the applicant to calm down. He kept saying that he was sorry and that he had not wanted to do what he had done.  At this time his wife was kneeling on the floor facing him and he held her in his arms.  Suddenly, he took out a screwdriver and used it to stab his wife on the back a number of times.  They struggled and fell on to the floor and whilst pressing his wife against the floor, the applicant stabbed her a number of times on her chest and back with the screwdriver.  This time, whilst stabbing his wife, he did not say anything to her.  Again, through her struggles, the wife was able to escape from the applicant and fled to the balcony for a second time.

9. Whilst on the balcony the wife shouted for help.  The applicant came on to the balcony and approached his wife from behind.  This time he was armed with a 2 foot bread knife and he used it to cut his wife’s neck.  The wife used her right hand to pull the blade of the knife away from her neck.  The applicant slipped on the floor whilst still holding the knife.

10. Shortly thereafter, the applicant’s father heard the wife’s repeated cries for help as he was returning home.  He rushed into the house and saw the applicant and his wife on the first floor balcony.  The applicant was then squatting on the floor of the balcony.  There was blood on the balcony and he could see that the wife was injured.  He carried her down to the ground floor of the house and made a report to the police.  Before the police arrived the applicant left the premises with the knife.

11. In the early hours of 15 June 2011 the applicant’s father started to look for him.  He saw some blood stains on a nearby bridge and contacted the police.  Subsequently, the applicant was found lying underneath the bridge with the bread knife lying next to him.  He had attempted to commit suicide by cutting his wrists.  He was in a semi-conscious state and was taken to hospital.

12. The injuries to the applicant’s wife were serious and required a number of operations and her hospitalization for 13 days.  She suffered from the following:

(i)     about 20 stab wounds in 3-8 mm in size, with different depths of penetration over the left upper back; 3 similar wounds at the left anterior upper chest and 6 similar ones at the left shoulder and the posterior aspect of the left upper arm;

(ii)    a subcutaneous surgical emphysema over the left chest wall, clinically a left pneumothorax;

(iii)    an anterior upper neck superficial laceration with suspected ligation mark; and

(iv)    a laceration of the right hand index and middle finger with the tendon exposed.

13. In addition to surgery on her left chest wall she also underwent further operations by the Orthopaedic surgeons for her right hand laceration for repair of the flexor tendon of that hand.  All wounds healed well and she was discharged on 27 June 2011.

14. The applicant was also hospitalized.  He had bilateral multiple lacerations over his wrists.  He was transferred to the Orthopaedics Department of the Prince of Wales Hospital for medical treatment.  Both his forearms and wrists had many cuts, the tendons and blood vessels of his wrists and fingers were cut, and his nerve had minor injuries.  His tendons were repaired and transplanted in the operation.  On 21 June 2011, the applicant was discharged.

15. A urine sample and blood sample were taken from the applicant and the urine tested positive for ketamine.

The Mitigation Advanced at Trial

16. The judge was informed that the applicant was aged 23 and had only secondary three education.  He had been working as a warehouse worker since age 16 and earned around $10,000 a month.  He had married the victim in January 2010 when he was only 22 years of age and they had a son who, at the time of the applicant’s trial, was only 2 years of age.  He and his wife and baby son had been living in his parents’ house prior to their separation.

17. It is not clear when, whether before or after his marriage, but at some stage the applicant became addicted to ketamine.  From March 2010 onwards the couple had constant quarrels over the applicant’s addiction.  In June 2011 the applicant became aware that his wife had been on a date with another man and this led to him asking her to leave him.  She then returned to her parent’s home.  Thus the disharmony between them was caused by drugs and fuelled by jealousy.

18. Notwithstanding that he had initiated the separation it caused the applicant to become more frustrated with his situation and led to him becoming more dependent on ketamine.

19. As to the attacks with the screwdriver and bread knife it was said that these attacks were not premeditated but purely opportunistic ones.  The weapons were household items that were readily to hand.

20. It was also said that he was under the influence of ketamine that he had taken in the house before the attack and this caused him to be unable to control his emotions and led to feelings of hopelessness and frustration.  He did not want to separate yet his wife was telling him she had to leave.

21. Such was his despair when the incident was over that he fled the house in order to kill himself.  He claimed to be very remorseful and was keen to plead guilty in order to spare his wife the ordeal of testifying against him. He now missed his wife and baby very much and pleaded for leniency.  The genuiness of his remorse, it was said, was evident from the contents of a letter he wrote to the court.

22. Other letters were also written by the applicant’s relatives, officer bearers from his village, and others.  The authors of these letters attested to his character and pleaded for leniency.  The most significant letter is that written by the applicant’s wife, the victim of his attack.  She said she had forgiven her husband and had placed on hold the processing of her divorce.  She said she now regretted filing divorce papers and wished the family to be reunited.

23. As to the wife’s injuries it was said that she suffered no permanent disability other than to the middle finger of the hand that she used to grab the knife.  As a result of injury to the tendon of this finger she has lost all movement in it.  However, there was some hope that a further operation may help in restoring some of its movement.

Reasons for Sentence

24. Characterising the attack as horrific the judge noted the repeated assaults by the applicant upon his wife in causing her grievous bodily harm.  She noted all the various injuries which the wife suffered and which resulted in her undergoing surgery and being hospitalised for 13 days.  In respect of the mitigation advanced on behalf of the applicant she said:

“You have your problems, but a court would be failing in its duty if it did not take a very serious view of what you did. The only real mitigation available to you is your plea of guilty.

All things considered, including all the mitigation letters written on your behalf, I adopt a starting point of 12 years’ imprisonment.

Reducing that by a third for your plea of guilty I sentence you to 8 years’ imprisonment.”

The Grounds of Appeal

25. There are two grounds of appeal.  The first is that the judge erred by failing to give any or sufficient weight to:

(a)    the lack of any history of violence;

(b)    the spontaneous nature of the offence;

(c)    the applicant’s abnormal mental condition;

(d)    the particular consequence that the plea of guilty avoided the victim giving evidence;

(e)    the forgiveness and desire for reconciliation of the victim; and

(f)    the adverse impact of the sentence upon the victim and the family;

and as a consequence, the sentence was manifestly excessive.

26. The second ground of appeal is that the sentence was manifestly excessive having regard to sentences imposed in comparable cases of violence.

27. At the hearing of this appeal Mr Loughran provided us with the up-to-date position in respect of the applicant’s domestic situation which is that the applicant and his wife have now agreed to divorce. The present position in respect of the wife’s injuries is that the likelihood is that she will not have movement back in the finger whose tendon was severed.

28. In support of his first ground of appeal Mr Loughran argued that the judge erred in saying that there was no other mitigation other than the plea of guilty and went on to expand on the matters listed in his first ground of appeal which he said mitigated the seriousness of the offence and justified the adoption of a lower starting point.

29. In support of his second ground of appeal Mr Loughran argued that a starting point of 12 years, which is at the very top of the 3 ‑ 12 years range in which most wounding cases fall, is reserved for those cases where more severe injuries are inflicted and where the victim suffered more substantial permanent disabilities.

Discussion

30. Important to a consideration of both grounds of appeal is the fact that the judge adopted as her starting point a sentence that was at the maximum of the range for the usual cases of wounding with intent.  The maximum sentence for a section 17 wounding offence is of course life imprisonment.  Nevertheless the Court of Appeal has said that the usual range of sentence for wounding with intent is 3 - 12 years’ imprisonment.  Of course, the reason why the sentencing range is so wide is because there is no “usual” kind of wounding with intent case.  Each case is different and the gravity of the offence will depend on the facts of its commission.  That being said it is not contended that there is anything about the facts of this case that takes it outside of this usual sentencing range.  The only issue is where within this range this case properly falls.

31. The judge was clearly shocked by this offence, characterizing the applicant’s attack upon his wife as “horrific”.  It is not completely clear what led her to take this view of the incident but it would appear to be the fact that it was composed of three separate assaults upon the wife each of which could have caused her very serious harm.  The first was the attempted strangulation, the second was the stabbing with the screwdriver and the third was the cutting of the wife’s neck with the bread knife.

32. Reaching a view, ourselves, of the seriousness of the attack, has not been easy.  On its face it was a very serious episode of violence and we can well understand why the judge took the view of it that she did.  There was a persistence to it that is very disturbing made more so by the fact that when one form of attack failed the applicant had recourse to another form; from strangulation he progressed to a stabbing attack with a blunt weapon and finally to a cutting attack with a sharp knife. 

33. But we believe there is more to this incident than first appearances would suggest.  Firstly this was not a premeditated attack by a coldly calculating husband bent on revenge.  Nor was it the typical type of domestic violence incident where an angry argument escalates out of control and one party resorts to violence.

34. Before the applicant initiated his attack upon his wife there was no anger manifest in their conversation; no suggestion in the admitted facts of a spiralling out of control argument between them.  The applicant had behaved calmly and sufficiently normally for his wife to believe, wrongly as it turned out, that he was not at that time under the influence of drugs.

35. As there was no history of violence by the applicant there was no real reason for the wife, in these circumstances, to fear for her safety.

36. What caused the applicant to suddenly become violent will never be known.  By the words he spoke during the first assault it is apparent that notwithstanding his previous outward calm he was in fact in a highly agitated and emotionally disturbed state.  This may have been due in part to his wife leaving him to return to her parents’ place, to his inability to achieve a permanent reconciliation with her and perhaps even to a general despair about the state of his personal life, an important element of which would no doubt have been his addiction to ketamine.  Whatever might have been the trigger for the applicant’s conduct the unusual circumstances surrounding that conduct cannot be ignored when assessing the seriousness of the offence.

37. This brings us to the hospital test of this applicant’s urine which proved positive for the presence of ketamine.  Although his counsel relied upon this result to advance a claim in mitigation that the applicant was under the influence of this drug at the time of the attack, no evidence of when the ketamine was taken, how much was taken and what effect if any it might have had upon the mind of an emotionally disturbed individual was adduced to the court. All that was said by his counsel was:

“… the defendant was examined with positive result of ketamine. He admitted that he had taken ketamine some time in the house before the incident.”

38. We must say that we are very concerned at the failure by trial counsel, not Mr Loughran who appeared only on appeal, to place material before the judge showing how and the extent to which the applicant’s consumption of the drug may have altered his mood or contributed to his emotional state.  Without this information, neither the judge nor ourselves can properly reach any conclusion on these matters.  They are not matters on which a court can reach a view unaided; they are pre-eminently matters on which a court turns to experts for assistance and without such evidence a court is left to speculate and that, of course, is something it must not do.

39. Nevertheless the position remains that it was an admitted fact that the applicant was a ketamine addict; he admitted taking ketamine on the day of the offence and ketamine was found in his body.  When that information is combined with the fact that there was no history of violence on the part of the applicant then one can infer that on the day in question the applicant was not his normal self and that the ketamine may have contributed in some way to his behaving out of character.  As unsatisfactory as it is to leave this issue in this state we do not believe it can be put any higher than this.

40. Another matter which is of concern to us in assessing the severity of these assaults is the seriousness with which the applicant pressed home his attacks.

41. In respect of every assault the wife was able to overcome the applicant and save herself.  It seems to us that had the applicant really intended to cause very severe, life threatening injuries to his wife he could have easily done so.  But he does not seem to have pressed home his attacks with any great purpose, other than to repeat his assaults with other means.  Throughout the assaults he appears to have been more emotional than aggressive and this seems to be the view his wife took for, instead of fleeing the house, she remained with her husband and tried to calm him down.

42. To say that the wife showed great courage in the circumstances in which she found herself is something of an understatement.  But then she knew her husband best of all; and perhaps it was that knowledge, together with her love for him, which prompted her to remain.  However her bravery and loyalty were, in the circumstances, extraordinary and her devotion to the applicant and concern for him, rather than for her own safety, should not go uncommended.

43. We have sought to show by our analysis of this incident that it was not such a straightforward episode of violence as appearances may first suggest.  Without in any way down-playing the seriousness of this offence we believe it does not warrant the adoption of a starting point of 12 years’ imprisonment.

44. As to ground two it is difficult to derive very much in legal principle from the decided cases.  This court has said on innumerable occasions that the sentences for this offence are very much case and fact specific and hence the wide range of 3-12 years for the usual type of wounding with intent.  Of course there will always be cases which, for one reason or another, require a starting point beyond this range.  Likewise, although cases attracting a starting point towards the top of this range will often be cases involving severe injuries and/or severe residual disabilities it cannot be said that only cases with these features are appropriate candidates for such a high starting point.

45. Consequently, we are of the view that little is to be gained in embarking upon a comparative analysis of other cases.  We believe it is more helpful to identify the relevant sentencing principles and by properly applying them arrive at a just sentence.  The starting point for this is an examination of the offence itself.

46. The reason that offences contrary to section 17 are serious is because they are committed with the intention of inflicting grievous bodily harm on the victim.  In helping the lay person to understand what this legal phrase means the courts have said that it means not just serious bodily harm but “really serious bodily harm”, laying emphasis on the qualifying word “really” [1] It must be remembered that an intent to inflict this level of harm will have the consequence, should the victim die from the assault, of rendering the assailant liable to conviction for murder.  In upholding the grievous bodily harm rule as a basis of liability for murder the Court of Final Appeal in Lau Cheong & Anor v HKSAR (2002) 5 HKCFAR 415 made the important point that an assailant intending to inflict this level of harm may not be able to control the consequences to the victim.  At page 437 C - D it said:

“A person may not subjectively intend or even foresee that he will cause death. He may desire to limit the consequences of his actions to the infliction of grievous bodily injury. However, as a matter of commonsense it is impossible to predict that the consequences of an intentional infliction of really serious bodily harm will necessarily be successfully limited and will not prove to be life threatening.”

47. It is hardly surprising, therefore, that the offence is regarded as such a serious one.  Indeed, the fact that the usual range of sentence is 3 ‑ 12 years’ imprisonment reflects that very seriousness.  For this range indicates that not only will imprisonment usually be the norm but also that the minimum period of imprisonment will usually be 3 years.

48. Thus in determining the gravity of the offence, the factor of primary importance is the intent of the assailant to cause the victim really serious bodily harm.  Whether that intent was fully realized in the injuries sought to be inflicted has been said to be of “secondary significance”.[2]  That must be so for, as the Court of Final Appeal pointed out in the Lau Cheong case, the consequences to the victim may not be as the assailant intended.  Tragically, they may be worse, but even when they are not or they are not as bad as the assailant hoped to achieve that may not lessen the gravity of the offence.  For the failure of the offender to achieve the level of harm he intended may be due to resistance by the victim, the intervention of others, speedy medical attention or purely unanticipated fortuitous circumstances.  That is why, even though the consequences to the victim will always be an important factor, the gravity of the offence lies in the deliberate resort to violence with the intent by the offender to inflict by such violence really serious harm on the victim.

49. Consequently, many of the factors to which a court will have regard in determining the gravity of a section 17 offence and the culpability of the offender will relate to the type of harm intended to be inflicted, the means by which that harm was inflicted and the circumstances generally surrounding the assault.  Thus, without attempting to exhaustively identity all the relevant factors, the usual ones will be the extent to which the assault was premeditated, the reasons or motivation underlying the assault upon the victim, the mental or emotional state of the assailant at the time of the assault, whether alcohol or drugs contributed to the actions of the assailant, whether the assault was committed by the assailant alone or as part of a group, the type of weapons employed, the level of force or aggression and the persistence with which the assault was pressed home, the injuries caused to the victim and the effect of the assault upon the victim and those close to him or her.

50. In arriving at an appropriate sentence the court will have regard not just to the need to punish the offender for his conduct, but also to the sentencing principles of deterrence, both general and individual, and, in appropriate cases, the need to denounce the resort to violence.  Of course deterrence and denunciation are always important when there is resort to violence but there may be particular situations that call for greater deterrence, such as in triad gang or contract attacks, or more denunciatory sentences, such as in domestic violence cases.

51. In respect of the latter type of case the courts have long played a role in denouncing a resort to violence.  People living together, whether they are husband and wife, parent and child or in any other relationship, inevitably suffer stresses from their work or personal life which may manifest themselves within the home environment in arguments or emotional outbursts.  How people, within the privacy of their homes, resolve their problems is not usually a matter that concerns the courts; but the moment the law is broken by a resort to violence in order to solve such problems then the courts will become involved.  By their sentences the courts must make clear that violence will never be regarded as an acceptable way of dealing with personal issues.

52. It is not uncommon in the area of personal relationships that a female victim will forgive her male assailant and ask the court to extend leniency towards him.  As long as this wish by the victim is genuinely made without any hint of improper pressure or influence being brought to bear upon her then the court will have regard to it.  But, and this is crucially important, it is not because the court tailors its sentence in accordance with the wishes of the victim, for no court will ever do that.  The opinions of victims and their relatives on the appropriate level of punishment is not a matter to which a sentencing court can properly have regard.

53. It is simply that, as with any victim of crime, the court will have regard to the effect and impact of the crime upon the victim.  The victim’s attitude to the criminal may help the court in an understanding of the crime’s impact upon the victim by, for example, revealing that the victim’s “psychological or mental suffering must be very much less than would normally be the case”.[3] Furthermore, where there is evidence from the victim that the sentence passed on the offender is actually aggravating the victim’s distress, then the court may moderate the sentence to some degree.[4]

54. These points were made by Woo JA in HKSAR v Wong Siu Kwan, CACC 166/2001, unreported 17 October 2001. At paragraph 25 he succinctly set out the correct approach:

“While it is true that a sentence cannot be tailored according to the views of the victim because of the intervention of the state and it is a matter for the court which will have to consider a wider sphere of public interest as well as reasoning and precedent, the court should have regard to what the victim has to say, relating to how the offence was committed, how seriously he was hurt, mentally and physically, how he has been affected by the offence, and whether the imposition of a particular sentence would add to his distress or concern, especially when the victim's views are rational and intelligent …” [5]

55. But even though the court will have regard to the impact of the crime upon the victim the weight it gives to this impact must necessarily vary from case to case.  In domestic violence cases a plea for leniency from the victim rubs up against the duty of the court to impose a sentence that firmly denounces the resort to violence in such situations.  That is why in HKSAR v Fan Tak Wan [2007] 5 HKC 50, Lunn J, as he then was, in giving the judgment of the Court of Appeal said at page 57, paragraph 23:

“The weight to be given to the element of the forgiveness by the victim of a wounding with intent is lessened the more serious the nature of the injuries. With respect, we accept as entirely apposite the observations cited earlier of Bridge LJ in Buchanan, namely:

‘When such offences of violence are committed, whoever the victim may be, the matter is inevitably one of considerable public concern.  The courts cannot regrettably be deflected from their duty of imposing sentences appropriate to the gravity of the offence when crimes of violence of this nature are committed against a domestic background.’”

56. In HKSAR v Cheung Cho Fat [2010] 5 HKC 400 at 409-410 a differently constituted Court of Appeal cited the same passage from Buchanan in support of the proposition that in cases of domestic violence a plea for leniency from the victim must give way to the need for a deterrent sentence.

Conclusion

57. Having regard to all the matters we have mentioned we are of the view that insufficient regard was had to the unusual features of this case by the trial judge.  These features cause the gravity of the offence and the culpability of the applicant to fall within the 3-12 years range at a point lower than the top of the range.  Furthermore this is not the typical domestic violence case and so the need for the sentence to cater for deterrence and denunciation is not as great as would otherwise be the case.

58. We were of the view that an appropriate starting point for this applicant was 8 years’ imprisonment which discounted by one third to allow for his plea of guilty becomes 5 years and 4 months’ imprisonment.

59. We therefore allowed the application for leave to appeal, treated the application as the hearing of the appeal, quashed the sentence imposed by the trial judge and in substitution thereof imposed a sentence of 5 years and 4 months’ imprisonment.