THE QUEEN v. KO NGA CHING

IN THE COURT OF APPEAL

1995, No. 229
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. On March 8 this year, before Deputy Judge Davies in the District Court, this applicant, a man in his early 20's, pleaded guilty to one charge of wounding with intent. The intent was to cause grievous bodily harm. He was on the same day sentenced to three years' and nine months' imprisonment. In arriving at that sentence, the judge adopted a starting point of five years' imprisonment and allowed a 25% discount for the appellant's guilty plea. That plea was the only mitigation available. The applicant has previous convictions for disorderly conduct, theft, assault occasion actually bodily harm, robbery, possession of an offensive weapon and possession of dangerous drugs.

2. Shortly stated, the facts were these. In July 1993, the applicant and his girlfriend moved in with her father, a Mr Luk, in a room in Lam Tin Estate.

3. The applicant and Mr Luk did not get on as Mr Luk often accused the applicant of stealing money from him.

4. On the day of the incident, October 26, 1993, there was a domestic row between the applicant and his girlfriend, who was pregnant at the time as indeed she was when she and the applicant first moved in with her father. The quarrel had its origin in yet another accusation by Mr Luk that the applicant had stolen from him.

5. The quarrel started outside the home. When the applicant set off for home, the girlfriend followed and warned her father against opening the door to the applicant because she feared what might happen to her father if he and the applicant were to come into each other's presence.

6. Nevertheless, the applicant managed to gain entry. He did this by saying that he only wanted to pack his things and go. When he got in, the quarrel between the applicant and his girlfriend flared up again.

7. There came a time when Mr Luk tried to stop the quarrel. The result of that effort on his part was that the applicant pushed him to the floor. Whereupon the girlfriend tried to help her father. That resulted in her being pushed so that her stomach - and it is to be remembered that she was pregnant at the time - collided with the side of a table so that she too subsided to the floor.

8. Next, the applicant rushed into the kitchen. That has to be taken in the context of the fact that this was a small domestic dwelling where no doubt the distance to the kitchen was only a matter of one or two steps.

9. Nevertheless, he did that and armed himself with a 12" long knife, described as a "beef knife". He came back to where Mr Luk was, accused him of trying to fabricate a case of theft against him by removing money from his i.e. Mr Luk's wallet. And to give point to all of that, he chopped Mr Luk no less than three times.

10. Mr Luk bled heavily, and he was taken to hospital. He was not discharged from hospital until November 1, 1993.

11. The medical evidence before the court was not very clear. Nevertheless the judge described the three wounds, accurately we think, as "one to the victim's left hand which appears long and to have cut the tendon and two cuts to the rear of the victim's left thigh".

12. Turning now to the grounds of appeal lodged, they read as follows:

(1) The Judge is wrong in law in that:

(a) his starting point of 5 years was too high

(b) his discount of 25% to a guilty plea was too low

(c) he failed to take into account the factor of provocation in his sentence

(d) he failed to give weight in his sentence that the offence arose from a domestic dispute

(2) In the circumstances, the sentence is manifestly excessive.

13. The applicant's contention as advanced by his counsel is that the appropriate starting point was one between two to three years' imprisonment and that a discount of one-third should be allowed for his guilty plea.

14. Now going through these grounds of appeal one by one, we pass over for the time being ground 1(a) which has to do with the starting point.

15. Ground 1(b) has to do with discount. This was a case which would have been very difficult for the applicant to defend. That still left his guilty plea with considerable mitigating effect. But in all the circumstances 25% was appropriate.

16. Ground 1(c) has to do with provocation. In the course of his submission, counsel of the applicant said that the better point here was spontaneity. We think that that shift by counsel was wise. It cannot possibly be suggested that this vicious attack was provoked, even though some irritation or indeed loss of temper might have been provoked. It is not every time a man loses his temper that he arms himself with a knife 12" long and chops somebody three times. That the incident was to some extent spontaneous is true. But it is also an incident which lasted some time. And there is no doubt that when the applicant went - we emphasise the word "went" - to arm himself with a knife, he already had two people on the floor as a result of his physical conduct.

17. Ground 1(d) has to do with the domestic nature of the dispute. There is no doubt that there was a domestic element to the incident. But that does not alter the fact that this was a very serious and indeed dangerous attack.

18. Going to ground 2, which is the general point that the sentence is manifestly excessive, we see nothing in it apart from what may be made out under ground 1.

19. To that ground we now return. Item (a) thereof takes the point that the starting point of five years was too high. We have been shown some of the past cases including one which makes the point that every case to a greater or less extent differs in its precise circumstances from all other cases. The starting point here we would characterise as high but not too high. It was at the top of the range but nevertheless within the range. In those circumstances we cannot interfere.

20. There is one more thing to be said. In the skeleton argument prepared by counsel for the applicant, item (d) of paragraph 3 reads as follows:

" Present domestic situation

(i) Appellant and Jo Jo intent to get married;

(ii) Jo Jo visited Appellant regularly;

(iii) The baby was under the care of Appellant's mother during the week and Jo Jo during week-end;

(iv) The Victim accepted Appellant. He wanted Appellant to treat Jo Jo well;'

(v) The Appellant treated Jo Jo well."

Jo Jo is the girlfriend.

21. None of that was put before the judge. No attempt was made to secure the prosecution's agreement beforehand that those were the facts. If such an effort had been made, the prosecution would have had an opportunity to make their own investigations. Little weight therefore can be given to this matter.

22. In any event, this must be said. Sometimes people's situations are so hard that they have to accept into their family even somebody who falls very, very far sort of the ideal. To some extent these people must be protected even from themselves. The state has an interest in this to carry out its proper role in containing violence in society.

23. This was a serious attack rightly treated by the judge as such. He dealt with the applicant severely but not too severely. The application for leave to appeal against sentence is dismissed.