HKSAR v. Chow Kwok Wing

DCCC 787/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 787 OF 2015

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REASONS FOR SENTENCE

1.Chow Kwok Wing you have pleaded guilty to one charge of wounding with intent to do grievous bodily harm, contrary to section 17 of the Offences against the Person Ordinance[1].

2.Full particulars of the offence are set out in the facts admitted by you on 8 December 2015.  In summary in the early hours of 11 July last year you were drinking with Mr Choi Chun Man and his girlfriend.  You had known Mr Choi since 2014 when you worked together as transportation workers.  While drinking a dispute broke out between you during which Mr Choi punched you on the face three to four times.  You then left.

3.About five minutes later you returned holding two choppers and approached Mr Choi. When Mr Choi tried to leave you chased after him and chopped him three times, the third time being after you had pushed him to the ground.  Although passers-by managed to separate you and take away the choppers you continued to fight with Mr Choi. 

4.The police soon arrived and arrested you.  Under caution and in a later video recorded interview you admitted that you went home and took the choppers to chop Mr Choi because he had hit you in the eye. 

5.Mr Choi sustained lacerations to three fingers of his left hand.  The most serious was to the thumb with the radial side neurovascular bundles completely cut requiring emergency operation for exploration and repair.  Full details of the injuries are particularised in the medical report of Dr Lee dated 18 November 2015.  Also submitted to court is a photograph showing the wound to the thumb taken on the day of the attack and two photographs taken on 27 November 2015 showing the wounds have healed.

6.Mr Choi has not however made a full recovery and nearly six months after the attack remains on sick leave.  Mr Choi complains of residual numbness to his thumb and hypersensitivity over the ring finger.  No assessment has however been made as to whether there will be any permanent injury to the left hand. 

Mitigation

7.In passing sentence I have considered everything said on your behalf by Mr Ng together with your mitigation letter and one written by your son.  I take into account you have a clear record and have worked hard all your life. 

8.Two mitigation letters from District Councillors have also been submitted.  In my view these letters should not have been placed before the court as both District Councillors do not know you and in writing the letters have relied solely on what they were told by your son.       

9.I am told at the time both Mr Choi and you were very drunk.  You were provoked by Mr Choi suddenly punching you in the face.  Photographs of your injuries have been submitted to court, which show the force of the attack on you.  Acting under the influence of alcohol you went home and impulsively took the two choppers to attack Mr Choi.  You now feel deeply remorseful for what you did.

10.There are no guidelines for sentence.  The courts will not tolerate attacking another person with a lethal weapon such as a chopper or knife on minor provocation or while having a dispute and that in dealing with this kind of case the courts will impose more severe and deterrent sentences[2].

11.In HKSAR v Chan Chun Tat[3]the court listed a number of relevant factors to be considered in determining the gravity of the offence and the culpability of the offender, including 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.

12.In HKSAR v Hau Ping Chuen[4]the Court of Appeal referred to the usual range of sentence for wounding with intent being described as 3-12 years[5].  The Court noting that there were a host of wounding with intent decisions which might be used in favour of a lenient view whereas others favour a stricter view said that:

“At the end of the day, a sentencing court obtains a ‘feel’ for the appropriate result by regard to the attitude of courts over a period of time to a great variety of circumstances.”

13.Sentences of less than 3 years have been imposed for offences of wounding with intent.  On 8 December 2015 Mr Ng, relying on the decision in Secretary for Justice v Hung Kar Chun[6], submitted a starting point lower than 3 years imprisonment is appropriate in your case. 

14.In Hung Kar Chun the defendant attacked the elder brother of his girlfriend.  The elder brother had sought to persuade his sister not to go out with the defendant and had warned the defendant not to disturb his sister again.  After the defendant kept calling the girlfriend the elder brother asked the defendant to meet him to negotiate a solution.  At the meeting the defendant stabbed the elder brother with a knife causing a deep laceration of 2 to 3 cm in length and 5 cm in depth below the waist and a laceration to the spleen with considerable bleeding into the abdominal cavity.  The elder brother underwent an operation in which his entire spleen was removed.   

15.The defendant was sentenced to 9 months imprisonment.  Taking into account the background to the case and that the hearing was an application for review, the Court of Appeal held that the appropriate sentence after trial should have been 2½ years imprisonment. 

16.The circumstances of Hung Kar Chun being more serious, in particular the injuries sustained by the victim were more serious than those sustained by Mr Choi, Mr Ng submitted that a starting point lower than 2½ years imprisonment is appropriate.

17.In HKSAR v Wong Kam & another[7], the Court of Appeal stated that the sentence in Hung Kar Chun was extremely lenient and that the case was not to be cited again in support of sentencing for wounding with intent cases[8].In the circumstances I allowed Mr Ng time to consider the decision in Wong Kam and to conduct further research as to sentence.

18.On 24 December 2015 Mr Ng submitted seven cases[9] for my consideration, including the cases I drew to his attention on 8 December.  Mr Ng accepts that each case is fact sensitive and that he refers to these cases to highlight the factors to be taken into account when sentencing in wounding cases and not for the sentences imposed. 

19.In the circumstances I do not propose to detail the facts of the cases cited by Mr Ng save to say that I have carefully considered these cases, including HKSAR v Wong Chi Hing[10] in which I imposed a sentence of 12 months imprisonment for an offence of wounding with intent.   As explained in court the facts of that case and the circumstances of the defendant were however very different.

20.Mr Ng places particular emphasis on the fact that you have a clear record and that you were provoked and acted under the influence of alcohol.  Whilst accepting that you felt aggrieved about being punched in the face and that under the influence of alcohol you acted impulsively, you cannot take the law into your own hands. 

21.In HKSAR v Chu Sze Wing[11] the Court of Appeal said that premeditation requires ‘aforethought’, that is some sufficient degree of deliberation or planning.  Going home, collecting two choppers and returning to chop Mr Choi and persisting in your attack when Mr Choi was on the ground, in my view, show that degree of deliberation.  Most fortunately Mr Choi did not suffer more serious injuries.

22.Having carefully considered all the circumstances, including your clear record; you were provoked into attacking Mr Choi because he attacked you first; you acted impulsively under the influence of alcohol; two choppers were used; the nature of the injuries sustained by Mr Choi and that he has not fully recovered from the injuries to his left hand, I am satisfied the proper starting point after trial is one of 3 years and 6 months imprisonment.  Giving you full credit for your plea of guilty reduces the sentence to 2 years and 4 months imprisonment. 

Eye injury

23.On 24 December Mr Ng told the court that you have difficulty in reading newspapers. Sentence was further adjourned to obtain a medical report as to the injury suffered to your right eye as a result of Mr Choi punching you. 

24.The senior medical officer of Lai Chi Kok Reception Centre details the injury to your right eye and that you have been referred to the eye clinic of the Caritas Medical Centre for further management of your injury.   Your next appointment is apparently later this month.  Your general condition in Lai Chi Kok Reception Centre is said to be stable.

25.I am satisfied that on the available medical evidence, although sympathetic, your injury is not so severe that as an act of mercy I should further reduce your sentence.  I have however taken into account the injury in better understanding how you felt at the time and why you were provoked into attacking Mr Choi. 

26.If the sight to your right eye further deteriorates whereby the correctional services can no longer properly take care of you, you can consider petitioning the Chief Executive for clemency.

27.You are convicted and sentenced to 2 years and 4 months imprisonment.