HKSAR v. LIU SHU TONG

CACC 515/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 515 OF 2000

(ON APPEAL FROM DCCC 868 OF 2000)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

This applicant was convicted after trial in the District Court of wounding with intent to do grievous bodily harm, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212. He was sentenced to a term of three years' imprisonment, and this is his application for leave to appeal against that sentence.

The Facts

2 The facts are these. The applicant is aged 67 years. He and his wife were at the relevant date proprietors of a property agency which is situated on the ground floor of 39C Pitt Street in Yau Ma Tei. The incident in question took place on 27 May 2000. At about 7.15am that morning a Mr Ip was in his lorry outside the agency premises, and he wanted to park that lorry in a space which was blocked, in that somebody had placed some stools there. So Mr Ip with the help of another moved the stools, and parked his vehicle in the space. The applicant and his wife, who viewed the space as reserved for themselves, approached Mr Ip, and told him to move on, but he refused, and the applicant thereupon returned to his nearby shop.

3 The evidence was that Madam Ching, the applicant's wife, stayed, and when Ip alighted from the lorry she pushed him. At about this stage, the applicant returned from the shop, and then he stabbed the man Ip with a fruit knife. He stabbed him in the chest, and this caused Ip to stagger back with blood coming from the wound, and he collapsed. The applicant went back to his shop, and hid the knife. Others had seen what had transpired, and the police were called. When they spoke to the applicant in his shop, he said that he had stabbed Ip with a pen. In his defence at trial, he said that he had found Ip arguing with Madam Ching in front of the shop and that Ip had punched him and stabbed his wife, and that he, the applicant, retreated to the shop, but that Ip pursued him and that, terrified, he randomly picked up something to scare off Ip, that Ip had lunged at him and ran, as it were, onto the knife and then left. But the judge did not believe the applicant's evidence. She believed the prosecution witnesses, and convicted the applicant.

Injuries

4 The injury sustained by Ip who was aged 31 years was a cut around the front of the chest wall close to the border of the breast bone. He collapsed after the attack, and there was a period of unconsciousness. He was taken to hospital where he had low blood pressure and circulatory instability. He had lost blood, and active resuscitation had to be performed, and his chest cavity was drained of about 200mm of blood. Further resuscitation was then required. He was transferred to the cardiothoracic unit of another hospital, and he spent 11 days in hospital. The trial judge classified the injuries as life threatening, and in view of these reports that classification appears correct. In any event, the nature of the attack, and the part of the body at which it was aimed, was in itself potentially life threatening.

5 The police found the fruit knife which had been used, and tests established that the blood on the knife was that of Mr Ip.

Sentence

6 The applicant is, as we say, a man aged 67 years with no previous convictions. The judge referred to a number of authorities and took a starting point of four and a half years' imprisonment. She commented that the injuries were initially life threatening and that, immediately after the attack, Ip had to be resuscitated several times. She noted that the attack was unprovoked and, taking it into account the age of the applicant and his previous good character, she sentenced him to a term of three years' imprisonment.

The argument

7 Mr Burkett, who today appears on behalf on this applicant, has presented a sensitive and skilled argument. He has no quarrel with the starting point adopted by the trial judge, nor with the reduction made by the judge from the starting point for the mitigating factors which the judge mentioned. Indeed, he concedes that the sentence might be characterised as light, and that one could not forcefully quarrel with such a characterisation. But he points to the fact that the judge did not have the advantage of a medical report which those acting for the applicant had in their possession but which, for reasons best known to themselves, they omitted to place before that court. He says that had the judge had that report she would have reduced the sentence further. We should proceed, he says, on the footing that the judge thought three years to be correct on the information which she had, and we should give weight to the fact that she had heard all the other evidence as well as seen the applicant giving evidence, so that we should not second-guess the judge on the sentence imposed with the factors then before her, and we should assume that it would inevitably have followed that, with this additional information, the sentence would have been less.

The reports

8 There were two reports by a doctor on behalf of the applicant, a Dr Yu. One is dated 28 December 1999, that is, some months before the offence with which we are concerned. It was prepared for the purpose of personal injuries proceedings, actual or contemplated, as the result of a motor cycle accident which the applicant suffered on 15 October 1997. As a result of that accident the applicant lost consciousness for some hours and was taken to Caritas Medical Centre. He had been occasioned facial and head injuries and a fractured arm. He was discharged after three days and received follow-up orthopaedic treatment and physiotherapy. The report stated that he suffered frequent headaches; had difficulty in concentrating; had memory problems, and that his personality had changed, so that whereas he was mild tempered previously, "he has become easily irritable", and argued with his wife and children and business associates over trivial matters, so much so that he threw things about when frustrated. He was diagnosed as having suffered post-concussional syndrome, which results in fatigue and irritability and impairment of memory, "and reduced tolerance to stress or emotional excitement", symptoms which are accompanied by feelings of depression or anxiety. The condition was at that stage said to be probably permanent. That means we should treat him as having suffered from that condition at the time of the offence.

9 The report also said that he could have treatment for his condition. But apparently, we discover, no such treatment has been sought. A further report by the same doctor, for the purpose of this appeal, adds nothing of substance to that earlier report. We also have a report, produced by the respondent, from a doctor who points out that irritability is not equivalent to a predisposition to violence and that, whereas an irritable person may be upset by trivial matters which would not be upsetting to a less irritable person, resorting to violence is an act of aggression.

10 Mr Burkett puts his case on this basis: that whilst it may well be said that the starting point adopted was appropriate, and whilst it is also the case that the applicant received a generous discount for his age and previous good character, no account was taken of the medical condition from which he suffers, for the judge did not know about it; and that had the judge known about it, a further discount would inevitably have been given. Mr Burkett accepts that, normally, it is no mitigation at all for a person to come before the courts to say "I am a person of irritable disposition, or of anxious disposition, given to losing my temper"; but, he says, it is rather different in the case of a 67 year old man, for the fact is that to suffer such an injury with these particular consequences at that age goes towards underlining the fact that his conduct is out of character; goes to explain why somebody of previous good character has acted in this way; and, whilst the average irritable, or bad tempered, person learns to cope with, and is expected to control, a life long disposition, one must in all fairness view with more sympathy the difficulty for a man aged 67 coping with such a disposition for the first time, at such an age, and after such a trauma.

Analysis

11 There is some validity in this as a mitigating feature, though we emphasize that it is very much restricted to the peculiar facts of this case. The weight to be attached to these factors is, however, another matter. It merits some weight, but it must be viewed against the following counteracting factors. First, we note that whilst the doctor, in 1999, suggested that the applicant seek treatment for his condition so that he might better cope with it, no such treatment was sought. Whether that resulted from some misunderstanding, or a deliberate decision, we cannot say. Further, and importantly, this is not a case of a sudden wild response to an assumed provocation, such as an immediate lashing out. This is not a case of someone being caught unawares whilst walking down the street by some provocation and, in the heat of the moment, striking the supposed provocateur. There is here an aura of aggression and arrogance, to which the wife was party, in the very circumstances which led to the problem in the first place, by which we refer to the fact that the applicant had arrogated to himself the right to reserve a parking space by placing obstacles there. This may well be a manifestation of the answer which Mr Burkett gave when we put to him the fact that this applicant appears to have shown no remorse for his conduct. The answer was that this applicant is someone set in his ways, who tends to see matters in rather black and white terms, and to have a view about his own position in his small community. That is the impression to be derived from the papers as a whole, and from the applicant's conduct in this case, and indeed from that of his wife. The applicant was not only behaving arrogantly about the parking space but, more importantly, he did not simply strike out in quick response to perceived provocation. He actually went back to his shop, and there fetched an implement. And not just any implement, but a long and dangerous knife. He did not just lash out with the knife, and happen accidentally to strike the chest. He deliberately used the knife towards the most vulnerable part of the body.

12 So this was a particularly dangerous act which was executed with some forethought and deliberation. We have seen the photograph of the knife, which is a long knife and, irritable or not, this applicant must have appreciated that its potential for causing serious harm was substantial. The applicant, and of course the Mr Ip, are fortunate indeed that the consequences were not more serious.

13 We note, too, the following fact which is an important matter when it is suggested in mitigation that a man has acted out of character, and that his personality rendered him less tolerant at the moment of a perceived provocation. The fact, we note, is that there has been no sense of shock or regret on the part of the applicant for what transpired. On the contrary, he lied to the police when they arrived, and he lied to the court at trial. To this very moment, there has been no expression of remorse by him. None of that is in aggravation of sentence, but it sits a little uncomfortably with the weight which we are invited to accord to the new evidence.

14 The judge was quite right to refer to a case in which the court said:

"There was a disturbing readiness in Hong Kong to resort to lethal weapons like choppers and knives to settle apparently ordinary and sometimes even trivial disputes. The public must be protected against this tendency to use these lethal weapons. The sentence must reflect the abhorrence of the community and make it clear to people that they would be severely punished if they resorted to these sort of weapons on such little justification."

(AG v. Law Wing Wah [1995] HKLJ 498)

15 We have no doubt but that the judge's approach on the evidence which she had was correct.

Conclusion

16 The question then is whether this new material should move this court to reduce the sentence imposed by the judge. We think not. The judge reduced the sentence by one-third which was, on any view, generous. Even with the mitigation now advanced, and to the extent that we accept, as we do, that it constitutes some mitigation, the sentence cannot by any means be said to be manifestly excessive. Approaching the matter from another perspective altogether, and it is the perspective which Mr Burkett invites us to adopt, we ask whether we believe that the judge, with this new information, would have passed a sentence different from that which she in fact passed. To suggest that she would have passed a different sentence presupposes that she would have taken the view that with all the factors in mind - the previous good character, the age of the applicant, his medical condition - a reduction of more than one-third was warranted. In the light of the weight to be given to the medical factor, and viewing the mitigating factors as a whole against the serious features of the case, we are satisfied that the judge would not have been able to move herself to a further reduction; a reduction which would then have clearly become excessive. For these reasons the application for leave to appeal against sentence is dismissed.