HKSAR v. Wong Kin Fai

DCCC 272/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 272 OF 2015

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Reasons for Sentence

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1.The defendant was convicted after trial of one charge of causing grievous bodily harm with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Chapter 212.

The Background and the facts

2.I have detailed the facts of the case when giving my verdict and I shall not repeat all of those here.

3.To put it shortly, the attack took place on the morning of 2 January 2015 inside the Defendant’s flat situated at Room 703, Tat Hong House, Po Tat Estate, Sau Mau Ping (“the subject premises”). Ms Chan, the victim in this case, started dating with the Defendant in September 2013 and became intimate. Chan’s younger sister (PW2) and her cousin Wei Lin were well acquainted to the Defendant during previous social gatherings with Chan.

4.Around Christmas 2014 there were some quarrels Chan had with the Defendant. On the day of the offence, the Defendant invited PW2 and Wei Lin to come to the subject premises to talk about his affairs with Chan. At about 2:00 am on 2 January 2015, PW2 and Wei Lin arrived. During the course of chatting in the subject premises, a pack of 12 bottles of beer had been consumed by three of them. A few hours later PW2 made a call to Chan asking her to come over to the subject premises and apologise to the Defendant so that the matter was going to be fine. Chan agreed to come over.

5.At or about 8:15 am on 2 January 2015, Chan arrived at the premises. Chan pressed the doorbell. The Defendant opened the door to let her in. PW2 who was sleeping in the master bedroom was woken up by Chan. PW2 told her to say sorry to the Defendant first. After that, Chan walked out of the master bedroom and went to talk to the Defendant. PW2 went back to sleep again until she was woken by the sound of shouting outside the master bedroom. When she went out of the master bedroom, she saw the Defendant kicking Chan with great force. She also saw the Defendant shouting at Chan who was already lying on the floor bleeding seriously on her head. The Defendant kept on kicking Chan’s body. Having seen her sister Chan being attacked, PW2 immediately stopped the Defendant from kicking Chan by holding him with her both arms. However the Defendant did not stop. He kept on shouting and kicking hard on Chan’s body. The kick lasted 5 to 10 minutes. PW2 and Wei Lin finally subdued the defendant and held him down on the bed. PW2 immediately escorted Chan to leave the subject premises and took her to the ground floor. There PW2 saw a security guard who was asked to make a report to the police. An ambulance and uniform police officers arrived shortly. Chan was then taken to United Hospital for medical attention. She did not regain consciousness until a few days after the assault.

6.As a result of the assault, Chan was found to have sustained the following injuries: a) fractures over right 6^th to 12^th ribs with flail segments over 7^th to 10^th ribs, b) small amount of right hemopneumothorax with chest drain in-situ, c) liver contusion and tiny laceration over posterior aspect of right upper pole of kidney with thin subcapsular hematoma. Chan was discharged home on 15 January 2015.

Personal background and mitigation

7.Upon request by Mr Allan, Counsel for the Defendant, the court adjourned the sentence to enable a victim impact report and a background report to be prepared on Chan and the defendant respectively before sentencing, and these reports are now before me and I have viewed all of them.

8.Mr Allan has mitigated fully and thoroughly on behalf of the defendant before me today.  The Defendant is 50, born in China, educated up to Primary 4 level and had worked as a factory worker for nearly 20 years. He is divorced with a son aged 18 who now resides with his ex-wife. Due to his suffering of psychiatric illness, the Defendant has been reliant on CSSA since 2010. 

9.The defendant is not a first offender, having appeared in court on eight previous occasions, starting from 1989 to 2013 involving a total number of 11 previous convictions, mostly related to offences of violence. His last conviction on 26 September 2013 was one of common assault, for which offence he was sentenced to 14 days imprisonment and compensation of $3000.

Victim Impact Assessment Report on Chan

10.The victim impact assessment report indicates that Chan seemed not being significantly affected by the assault. She declared that she had forgiven the defendant already and she had paid visits to him many times during his remand period. She reported that the defendant had made apology to her in one of the visits. She admitted she did not know what he apologized for but she did not ask for clarification. She admitted she avoided knowing the answer. She declared that she was an optimistic person who only focused on the positive side of her life and refused to look back or go into details any negative experience she had encountered.

11.Chan expressed regret for what had happened and held responsibility for the occurrence of it as she believed that she had done something “wrong” that led to the violent reactions of the defendant. She claimed that she had already recovered from all the physical injuries and also denied of having any psychological drawback after the incident. She further expressed clearly her intention to resume the relationship with the defendant after he was discharged.

Defendant’s background report

12.The Background Report discloses that the Defendant admitted that he had a row with Chan a week earlier before the occurrence of the incident due to the fact that Chan had made fun of him in front of her friends when they played mahjong together, and Chan left his belongings, including his psychiatric drugs, outside his front door when there was nobody at home. The night before the incident happened, the Defendant said he had drinking and chatting with PW2 and Wei Lin the whole night. He said he committed the offence under alcoholic effects which he was not conscious of what he had done to Chan whom he considered as his loved one for marriage. Moreover he had not taken the medication for a few days as he had left at Chan’s home which might have affected his illness. He felt regretful for Chan’s injuries. During the remand period, he had made reflection on himself. The defendant asked the court to sentence him leniently so that he could be discharged soon to take care of his aged parents and Chan.

13.In mitigation, Mr Allan told the court that Chan and the Defendant had all along maintained a very good relationship with each other and they had planned to get married soon. It was said that Chan has forgiven the Defendant and she had fully recovered from her injuries. It was submitted that the Defendant acted under the influence of alcoholic effects and unstable mental states and that the Defendant was sorry for what happened. Mr Allan stresses that the fact that the Defendant has psychiatric illness could be blamed.

14.It was submitted by Mr Allan that the Defendant would control his temper, abstain from drinking and receive continuous psychiatric treatment and avoid further conflicts with others. Mr Allan asks for a lenient sentence to be imposed on the defendant.

Sentencing considerations

15.There are no sentencing guidelines in this type of crime. The maximum sentence for a section 17 wounding offence is 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. 

16.Mr Allan drew my attention to what the defendant’s ex wife said in the background report. It was said that his ex wife was so shocked to know that the Defendant had committed the offence which was out of his character as he had not been a violent man and had never hit a woman. The Defendant was described as a reasonable person who had never resorted to domestic violence towards her or his son. However, I cannot ignore the fact that the defendant is in fact a persistent offender as far as violence-related offences are concerned.  It can be seen that his previous sentences of financial penalty and imprisonment for offences of violence namely 3 charges of “Assault occasioning actual bodily harm”, one charge of “fighting in public place”, one charge of “resisting arrest under offences against the Person Ordinance, one charge of “Assaulting a police officer under offences against the Person Ordinance and one charge of “common assault”, have not deterred him from reoffending. 

17.It is shown that Chan has since forgiven the Defendant and has visited him frequently whilst he has been detained.  They have since reconciled. However public interest demands that offences of this nature be visited with the imposition of a term of imprisonment. In The Queen v. Tsui Mei-yingCACC409/1987 at paragraph 9, it was said that the forgiveness of the victim cannot be given too much weight because of the terrible injury, deliberately occasioned, and its probable consequences to the victim.

18.I have taken into account the injuries suffered by Chan as a result of the kick.  What the defendant did was brutal and uncivilized. It is clear that at the time of the assault, Chan was unarmed and rather defenceless. It is only fortunate that she did not suffer more serious and long-lasting injuries. It is not the worst possible case for an offence of this nature but nonetheless it is serious.  A term of imprisonment is entirely appropriate.  

19.I have taken into account the defendant’s background and mitigation put forward on his behalf. It is no doubt that drink played a part in this offence, albeit it is a case of self-induced intoxication. Therefore I accepted that the attack was not pre-planned.  Other factors I found relevant are that the Defendant had not used the weapon during the attack and fortunately Chan suffered no long-term ill effects. Further she has forgiven the defendant and there are no psychological damages suffered.

20.Considering all the circumstances of this case, I take a starting point of 2 years’ imprisonment. Having been convicted after trial, I see no other reason to lower that starting point. For this offence, the defendant is sentenced to 2 years’ imprisonment.