Court File and Parties

Court File No.: 15 08859

Ontario Court of Justice

Her Majesty the Queen

v.

Kai Man Wong

Reasons for Sentence

Before the Honourable Justice P. West

March 29, 2016 at Newmarket, Ontario

Appearances

J. Kim – Counsel for the Crown

T. Smith – Counsel for Kai Man Wong

Sentencing Decision

WEST, J. (Orally):

Background and Guilty Plea

The accused pleaded guilty on January 29th, 2016 to a charge of aggravated assault involving his ex-wife, Ms. Tina Chow. The offence was committed on October 13th, 2015, apparently after the accused had returned from a trip to Vancouver.

Exhibits Filed

A number of exhibits were filed, including:

• A photograph of the serrated machete type knife (Exhibit 1)
• Photographs of Ms. Chow's injuries (Exhibit 2)
• An agreed statement of facts (Exhibit 3)
• Victim impact statement from Ms. Chow (Exhibit 4)
• Pre-sentence report (Exhibit 5)
• The written sentencing submissions of the Crown (Exhibit 6)

Facts

The facts are relatively simple and are set out in detail in Exhibit 3.

The accused and Ms. Chow's marriage had been experiencing difficulties since 2011 and in March 2015 Ms. Chow advised the accused of her intent to file for divorce. In April of 2015 Ms. Chow apparently met with a family lawyer and advised her husband she considered their marriage to be over. As a result they separated, but continued to reside in the family home, although separate and apart.

The accused returned from his trip to Vancouver on October 11th, 2015. While he was gone Ms. Chow suspended his insurance on his car, stopped paying for his cell phone and held a garage sale at which a number of items were sold from the house. The accused, upon returning, was upset by Ms. Chow's actions while he was away.

Ms. Chow decided she could no longer live in the same house with the accused and made the decision to move out. On October 15th, 2015 Ms. Chow drove their 16-year-old daughter to school and when she returned to the family home she began packing her belongings and was bringing them into the garage. The accused confronted her in the garage, told her she could not leave and then told her if she did he would kill two people in her family. Ms. Chow, in her statement to the police, indicated she did not really believe what her husband said to her and thought he had said it to cause her to remain in the house.

The accused left the garage, went back inside the house, and it is a little unclear as to whether he returned to the garage or whether there is a confrontation in the house itself, but when the two of them come together again, the accused is now armed with a large machete type knife with a serrated edge. It can be seen in Exhibit 1 and is approximately, as I understand it, 25 inches in total length.

The accused began to attack Ms. Chow with the knife, striking her a number of times. Exhibit 2(A) to 2(E) are photographs, which depict the injuries Ms. Chow suffered as a result of the accused's attack. During the attack the accused threatened to kill Ms. Chow. Ms. Chow pleaded for him to stop; she made reference to their daughter. She was on her knees and crouching with her hands and arms covering her head, trying to protect herself from the accused's striking her with the knife. Most of the injuries that I have observed in Exhibits 2(A) to 2(E) were to Ms. Chow's hands, her arms, her head and the back of her neck, as a result of the accused's attack. A number of the injuries, which I will discuss in more detail, required stitches.

Ms. Chow described that when the accused saw the blood from the injuries that he had caused the attack stopped. The accused told his wife he was sorry and he then called for assistance from a relative. Ms. Chow, who was bleeding and who had been injured, convinced the accused to drive her to the hospital, which he did.

Once at the hospital the nurse, after assessing Ms. Chow's injuries, notified York Regional Police. The machete type knife was recovered from the house. The accused was also seen at the hospital and he was formed under the Mental Health Act by the emergency doctor. I do not have any information as to how long he remained in hospital as a result of being formed under the Mental Health Act.

York Regional Police arrested the accused for attempted murder. The information I have is that he has remained in custody since October 13th, 2015.

Description of Injuries

The injuries to Ms. Chow can be described as follows from the agreed statement of fact and they can all be observed in the five photographs that were filed as Exhibit 2:

There are a number of red marks on her left arm from her neck to her forearm. There are four 'V' shaped abrasions on her left wrist. There is purplish bruising to the back of her neck. There are lacerations to her left hand. On the fingers and the hand there are seven sutures in total in respect to those lacerations. In addition, there is bruising and swollen knuckles and one of her fingers on her left hand is fractured.

On her right hand she has swollen knuckles, cuts on her fingers and there are a total of five sutures.

On her scalp, her head, there are five linear cuts to the top of her head, each of which, according to the agreed statement of fact, is a half centimetre to a point one centimetre long.

Ms. Chow is still suffering from the emotionally terrifying attack perpetrated by the accused. She still suffers from fear and anxiety as a result of the accused's conduct. She has filed in family court for divorce and she still suffers from these injuries in terms of continuing pain and continues to have difficulties with the use and operation of her left hand. She is still receiving treatment, both in the form of acupuncture and physiotherapy, for her injuries.

A number of the injuries to her hands have resulted in scars, which are visible, and quite frankly it is a miracle that Ms. Chow was not injured more seriously or killed as a result of the accused's attack.

Ms. Chow also references the impact of the accused's actions in the victim impact statement on their 16-year-old daughter and how her daughter is afraid of the accused because of his actions towards her mother.

Sentencing Submissions

In her written submissions and in court today, Ms. Kim, for the Crown, is seeking a custodial sentence of two and a half years, less credit for pre-trial custody. The pre-trial custody is 169 days of actual pre-trial custody and at a one point five to one credit, based on R. v. Summers, S.C.C., that credit then would translate to 254 days. I should just note that during the pre-trial discussions in this matter, which led to the accused's guilty plea on January 29th, 2016, my notes indicate that Ms. Kim's position was a range of sentence of two years to two and a half years in the penitentiary.

The defence submits the appropriate sentence is one of 18 months, less credit for pre-trial custody. I should also note at no time did the accused bring a bail application in respect of his release from custody and he has remained in custody, as I have indicated, since his arrest.

Sentencing Principles

There is no doubt the paramount sentencing principles in the circumstances of this case are denunciation and deterrence, both general and specific. Mr. Smith does not take issue with this. The Crown has provided me with the decision of R. v. Boucher, 2004 O.J. No. 2689 (OCA).

I am also mindful of the five-member panel of our Court of Appeal back in 1989 in the case of R. v. Inwood, 48 C.C.C. (3d) 173 that dealt with domestic violence. That case includes a quote which is often cited in dealing with domestic violence at page 181 where Chief Justice Howland, who wrote the judgment of the court, has this to say:

This court has acted on the principle that where there is a serious offence involving violence to the person then general and individual deterrence must be the paramount considerations in sentencing in order to protect the public. In my opinion, this principle is applicable not only to violence between strangers but also to domestic violence. Domestic assaults are not private matters, and spouses are entitled to protection from violence just as strangers are. This does not mean that in every instance of domestic violence a custodial term should be imposed, but that it should be normal where significant bodily harm has been inflicted, in order to repudiate and denounce such conduct.

Statutory Framework

Under section 718 of the Criminal Code the fundamental purpose of sentencing is to contribute to respect for the law and maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

a) denounce the unlawful conduct;

b) deter the offender and others from committing such an offence;

c) separate the offender from society where necessary;

d) assist in the rehabilitation of the offender;

e) provide reparation for harm done to victims of the community; and

f) provide a sense of responsibility in the offender while acknowledging the harm done to the victims and the community.

According to section 718.1 of the Criminal Code the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender".

Section 718.2 of the Criminal Code provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances.

Section 718.2(a)(ii) of the Criminal Code provides the statutorily aggravating circumstances on evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner.

Further aggravating circumstances under section 718.2(a)(iii) of the Criminal Code provides the statutorily aggravating circumstance of the offender breaching a position of trust in committing the offence.

In my view both of these statutorily aggravating circumstances are present in this case.

This section also requires that a sentence be similar to other sentences imposed on similar offenders in similar circumstances and that the combined duration of consecutive sentences not be unduly long and that an offender not be deprived of liberty if less restrictive sanctions may be appropriate and that all available sanctions, other than imprisonment, that are reasonable in the circumstances be considered.

Case Law Review

I was provided a number of cases by the Crown and defence, which are set out in their respective casebooks.

For the Crown:

• R. v. Ferguson, 2004 O.J. No. 3022 (OSC)
• R. v. W.A.E., 2002 O.J. No. 4834 (SCJ)
• R. v. B.R.L., 1999 O.J. No. 2610 (OSC)
• R. v. Singh, 1996 O.J. No. 5256 (OCJ)
• R. v. Gill, 2014 B.C.J. No. 394 (BCCOA)
• R. v. Wolff, 1996 B.C.J. No. 108 (BCCOA)
• R. v. Evans, 1997 A.J. No. 340 (ABCA)
• R. v. Umpherville, 1999 S.J. No. 725 (SKPC)
• Unreported decision of Justice Chisvin, here in Newmarket, O.C.J. R. v. Abella, January 6th, 2015

For the Defence:

• R. v. Goodyear, 2013 NLTD(G) 71
• R. v. Ibrahim, 2011 ONCA 611
• R. v. Gludd, 2015 ONSC 392
• R. v. Maslakovic, 2000 O.J. No. 4247 (SCJ)
• R. v. Bell, 2015 ONCJ 62
• R. v. Singh, 2011 ONCJ 394

I am not going to go through the cases. I have read them all. What becomes clear when one reads through the cases is that each case must be determined by the peculiar facts of that individual case. Many of the decisions provided in the Crown's book of authorities were far more serious fact scenarios in terms of injuries, in terms of the nature of the assault that was perpetrated. Even in the defence's book of authorities, Justice Robertson's decision, for example, is a much more serious case that involved a similar sentence now being sought by the Crown of two and a half years in the penitentiary.

Analysis of Sentencing Principles

As I have indicated, it is clear the paramount sentencing principles of this case are deterrence and denunciation. Rehabilitation, in my view, is also applicable, particularly in the case of a first offender, but having regard to the nature of the assault perpetrated by the accused, rehabilitation is applicable to a lesser extent.

The Crown argues the actions by the accused were planned. However, it is my view, on the facts agreed to in the agreed statement of facts, it would be hard and very difficult to find any degree of planning by the accused. It is my view on the facts agreed to that the attack by the accused was a spontaneous attack brought about by the circumstances which presented themselves to him.

I find support for this conclusion in the accused stopping his attack in the middle of the attack upon seeing his wife bleeding and her pleading with him to stop and to think of their child. His indicating, after he stopped immediately, that he was sorry for what he had done, his then calling a relative for assistance, his acceding to Ms. Chow's request to be taken to the hospital and the fact that once at the hospital the accused was seen as well by the emergency doctor, I can only assume, someone who had some psychiatric expertise, because the accused was formed pursuant to the Mental Health Act, given the condition he was in when he brought his wife to the hospital.

All of those things, in my view, indicate something other than a planned and deliberate act was at the heart of what happened on October 13th, 2015. I want to make it abundantly clear, however, this in no way lessens the seriousness of the accused's actions.

Gaps in the Record

It is unfortunate that no psychiatric report was prepared to address the underlying causes of the accused's conduct. It is also unfortunate that the emergency hospital records were not provided to me, which might have given some further insight into the accused's condition and the reasons why the emergency doctor believed on October 13th, 2015 the accused satisfied the preconditions under the Mental Health Act to be detained in hospital for further observation from a psychiatric point of view. I have none of that information before me, which would have been very helpful in determining an appropriate sentence. Many of the decisions that were provided involved some assessment of the accused's psychiatric state at the time of the commission of the offence.

I have information in the pre-sentence report that the accused was suffering from depression. I do not know the extent of that depression, whether there was a psychiatric component to it or it was simply because of the circumstances of the break-up of his marriage. That is obviously something, in my view, that should be investigated while the accused is on probation.

Mitigating Factors

In terms of mitigation, the accused is a mature first offender and given the case law involving the sentencing of first offenders, in my view any incarceration which I find is appropriate in this case should be for the least period of time, consistent with the other sentencing principles applicable in sentencing of domestic assaults. He did enter a plea of guilty at an early opportunity and certainly from what Mr. Smith has told me, it is not disagreed upon by Ms. Kim, right from the Crown resolution meeting it has always been the accused's intention to resolve these charges by way of a guilty plea. In my view his guilty plea demonstrates remorse on his part for his actions and acceptance of responsibility. Both of those mitigating circumstances are favourable when one looks to prospects of rehabilitation in the future. Further, the accused's guilty plea saved Ms. Chow from having to relive the horrific assault as a result of having to testify.

In the pre-sentence report Ms. Emily Osino, the probation officer, indicates at page five, the accused noted:

He is not an aggressive person and regrets his actions. He advised that his main wish is for his daughter to have both her mother and father together and that he continues to maintain a positive relationship with both his immediate and extended family members.

She goes on to say:

The subject takes full responsibility for the offence before the court and is remorseful of negative contact with the justice system that has caused emotional strain.

She continues:

He stated, "I lost my temper, I was not calm enough, I lost everything now". He explained he did not intend or mean to cause problems, but he realized that his wife was going to take their daughter away from him. He reported that on impulse he grabbed and hit his wife with a knife. He regrets his actions and said he is amenable to attend any form of counselling ordered by the court.

Then at page seven the probation officer continues:

As stated earlier, he spoke of some feelings of remorse, however at times justified his behaviour. He explained that he did not intend or mean to cause problems, but he realized that his wife was going to take their daughter away from him. He reported that on impulse he grabbed, hit his wife with a knife. He regrets his actions, said he is amenable to attend any form of counselling as ordered by the court.

The probation officer also identifies an area of concern and that is his:

...inability to control his temper and detract from acting out aggressively and these matters have not been addressed to date.

Of course the accused has been in custody since his arrest and that is a good reason why these matters have not been addressed.

Another mitigating circumstance is reflected in the pre-sentence report, which indicates that the collateral sources contacted by the probation officer all indicate that the actions leading to the charge before the court were out of character for the accused.

There are allegations in the pre-sentence report from the victim in this matter that the accused has a gambling addiction. The accused denies those allegations. In my view this may have been a source of conflict in the marriage. It is not something I am going to be able to resolve in determining an appropriate sentence and it really does not play a significant role. What is more significant is that this is an assaultive behaviour in the context of a marriage. That is in itself an aggravating circumstance and the reasons for the discord in the marriage, while they may have provided some light on why this attack occurred in terms of the underlying conflict within the marriage, I do not believe that those reasons are necessary to determine what an appropriate sentence is.

Aggravating Factors

The Crown sets out in her written submissions aggravating features of this case, which she says cannot be minimized and I agree with the comments that she makes. The use of the knife in the attack, in my view, is an aggravating circumstance. Based on the agreed statement of facts the attack was unprovoked, unanticipated and the victim was defenceless.

I do not know the exact circumstances in terms of where Ms. Chow was or where the accused was just prior to the attack or whether there was an argument just prior to the attack. There is no doubt he saw his wife taking her belongings into the garage, that is referred to in the agreed statement of facts, and there is no doubt in my mind that this caused the accused to become upset and perhaps enraged. That is also reflected in his admissions to the probation officer in the pre-sentence report. He indicates in the pre-sentence report, and I have found that this was a spontaneous act, something that occurred on impulse and perhaps out of anger, but not something that was planned. I do not know where the knife came from. It appears to be a knife that might be in a garage and it may have been something he grabbed during whatever discussion, argument, conversation they were having before he acted on impulse.

There is no doubt that the victim in this matter, in my view, suffered serious injuries, both physical and psychological. I think it is very difficult for someone who has not been involved in that type of attack to fully appreciate the trauma that would have been created in Ms. Chow's mind when she sees her husband with a 25 inch machete style knife, which is now being used to attack her and strike her repeatedly about her hands and arms and her head. There is no doubt in my mind that there were numerous strikes by the accused towards his wife and as I have already indicated, it is a miracle that this did not result in more serious injuries or even death.

The Crown points to the fact that the offence occurred at a time when the victim was planning to leave the marriage. There is no doubt about that. I do not know if that is an aggravating feature, but it certainly provides the circumstance and the background under which this assaultive behaviour occurred.

There is no doubt this is an offence of domestic violence, originally a charge of attempted murder together with the aggravated assault, but a plea was permitted with respect to the aggravated assault, clearly the less serious of the two offences. However, as I have indicated, this is a serious assault and there is no doubt that there are continuing debilitating, and as the Crown describes, devastating effects upon the victim, as well as the accused's daughter.

Pre-Trial Custody Credit

The accused has spent 169 days in pre-trial custody, which is close to five and a half months of pre-trial custody, for a credit of 254 days. For a first offender that is a significant period of time in jail. I have no doubt that with respect to the principle of specific deterrence that the time that the accused has spent in custody likely brought home to him the seriousness of his conduct and actions back on October 13th, 2015. However, in my view, the principles of denunciation and general deterrence, that is deterring others from engaging in similar behaviour in domestic relationships, are important sentencing principles that must be addressed.

Sentence Imposed

In all of the circumstances of this matter the sentence I am going to impose is one of 610 days, from which 254 days will be subtracted as credit. The 610 days or approximately 20 months is what I view as an appropriate sentence. I am also taking into account that some of the months have 31 days and some months have 30 days, so I am probably a little over, but in my view it is a 20 month sentence.

So 610 days is the sentence, less 169 actual days of pre-trial custody on a 1.5 to 1 credit, it translates to 254 days of pre-trial credit and that will leave 356 days, so just shy of a year.

Probation and Conditions

In addition, the accused will be on probation. The probation will start upon release from custody. It will have the statutory terms, most important of which are:

• Keep the peace and be of good behaviour
• Report in person to a probation officer within five working days of release from custody
• Report at all times and places as directed by the probation officer or any person authorized by the probation officer to assist in supervision
• Cooperate with the probation officer
• Sign any releases necessary to permit the probation officer to monitor compliance
• Provide proof of compliance with any conditions of this order to the probation officer on request
• Live at an address approved of by the probation officer and not change that address without obtaining consent of the probation officer in advance

The probation order is for a period of three years.

No-Contact Order

The accused is not to contact or communicate in any way, directly or indirectly by any physical, electronic or other means with Kit Wa Tina Chow, except:

• Pursuant to a family court order made after today's date; or
• For the purpose of conducting or defending family court proceedings in the presence of or through legal counsel; or
• For the purpose of attending family mediation with an accredited family mediator or a professional mediator service provider; or
• For the purposes of making contact arrangements for or having contact with the child through a mutually agreed upon third party

The accused is not to be within 100 metres of any place where Kit Wa Tina Chow lives, works, goes to school, frequents, or any place the person is known to be except:

• For required court attendances; or
• Except pursuant to a family court order made after today's date; or
• For the purpose of conducting or defending family court proceedings in the presence of or through legal counsel; or
• For the purposes of attending family mediation with an accredited family mediator or professional mediator service provider; or
• For the purposes of making contact arrangements for or having contact with the child through a mutually agreed upon third party

Weapons Prohibition

There will be a weapons prohibition pursuant to the probation order:

• The accused is not to possess any weapons as defined by the Criminal Code.

A number of examples will be gone over with the accused that are set out on the probation order.

Counselling and Treatment

The accused is to attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for:

• Anger management
• Domestic violence, which may include Partners Assault Response Program
• Psychiatric or psychological issues
• Or any other reason that the probation officer deems appropriate

The accused shall sign any release of information forms as will enable the probation officer to monitor attendance and completion of any assessments, counselling or rehabilitative programs as directed, and shall provide proof of attendance and completion of any assessments, counselling or rehabilitative programs as directed.

Ancillary Orders

There will be a DNA order. This is a primary designated offence and therefore mandatory.

There will be a weapons prohibition order under section 109 of the Criminal Code for 10 years.

There will be a victim fine surcharge of $200 with one year to pay.

Allocution

The accused was asked if he understood all of the terms of his probation and agreed to abide by those terms. The accused confirmed his understanding and agreement.

The Court addressed the accused as follows:

You need to get to the bottom of why you thought the way to keep your family together was for you to attack your wife with a knife, and a serious knife, because I can tell you that conduct ensured your wife carrying through with her discussion that she was going to divorce you and leave you.

You need to understand why that happened and that is why I have placed you on three years probation and it is why I have ordered that you attend for assessment and counselling and treatment, which you told the probation officer who conducted the pre-sentence report you were prepared to do anything recommended so that this would not happen again. I can tell you the only way this is not going to happen again is for you to understand, be aware, know what you need to do in circumstances that you found yourself in on October 13th, 2015. If you do not get to the bottom of what brought about this conduct this could happen again with far more tragic consequences.

You will have, I believe, a lengthy time to demonstrate to your teenage daughter that you are appropriately dealing with what I have just talked to you about. You will have to rebuild her trust and if you are serious, what you said to the probation officer, then I believe that that may be something in the future where you will be able to rebuild that trust with your daughter, that you will be able to have a relationship with her. But I think you need to recognize that you are not going to regain your relationship with your wife.

Remaining Charge

The remaining charge was withdrawn by the Crown.

Certificate of Transcript

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Carol P. Smith, certify that this document is a true and accurate transcript of the recording of Her Majesty the Queen v. Kai Man Wong, in the Ontario Court of Justice held at 50 Eagle Street West, Newmarket, Ontario, L3Y 6B1 taken from Recording Number 4911_200_20160329_091256_6_WESTPE.dcr, which has been certified in Form 1.

April 20, 2016

Photostatic copies of this transcript are not certified and have not been paid for unless they bear the original signature of Carol P. Smith, and accordingly are in direct violation of Ontario Regulation 94/14, Courts of Justice Act, January 1, 1990.