HKSAR v. Tang Wai Wing, Eric

DCCC 1041/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1041 OF 2015

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to two counts of “Wounding with intent”, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212.

Facts

2.At around 9:25 am on 10 September 2015, Mr So was on his way to a bus stop.  Upon arriving at the junction of Fuk Kwan Avenue and Li Kwan Avenue, Mr So suddenly felt pain at the back of his right thigh near the buttock area.  Mr So thought someone was trying to pickpocket on him and turned round.  Mr So then saw the defendant standing behind him.  There was no other person around.  The defendant immediately fled along Fuk Kwan Avenue.  Mr So chased after him and intercepted the defendant after a short chase of about 20m.  In the course, Mr So grasped the shoulder bag of the defendant and the defendant kept struggling with Mr So.  The defendant was finally subdued on the ground by Mr So.  The defendant apologized to Mr So and said, “Sorry, I was high (under the influence of drug) and bumped into you.”  By this time, Mr So found blood on his shirt and back of trousers and realized he was bleeding.  Case was reported.

3.Mr So was conveyed to Ruttonjee Hospital for medical treatment.  He was diagnosed to have suffered from fresh tenderness and lacerations on right thigh (1^st injury) and right lower chest wall (2^nd injury).  12 stitches were applied to his right thigh and 4 stitches were applied to his right lower chest wall.  It was believed that the 1^st injury ws caused by the defendant’s initial assault from the back and the 2^nd injury was caused during the struggle between the defendant and Mr So.

4.The defendant was arrested at scene.  He remained silent under caution.  A cutter of around 15cm in length was recovered near the location where the defendant was intercepted by Mr So.

5.In a subsequent video-recorded interview, the defendant admitted under caution that he was a decoration worker and he carried the cutter for working purpose.  He went to Tai Hang to look for a friend. He used the cutter to attack Mr So, who was a stranger to him.  He was mentally confused at the time of the incident and he assaulted Mr So with the cutter because Mr So was of strong-built and he thought Mr So would attack him.  He ran away after assaulting Mr So because he knew he had done something wrong.  When he was intercepted by Mr So, he threw away the cutter.

Mitigation

6.The defendant is aged 45.  He is single and lived alone as a street sleeper.  He had no contact with his family members for over 10 years.  He worked as a casual decoration worker earning about $5,000 per month prior to the arrest. 

7.In mitigation, Mr Lam submitted that there was no sentencing guideline for this type of offence, with the usual range of sentence from 3 to 12 years’ imprisonment.  He referred this court to HKSAR v Chan Chun Tat [2013] 6 HKC 225 for the factors that the court can take into account in sentencing of this type of offence.  Mr Lam submitted that the present offence was not premeditated.  The defendant possessed the cutter for work purpose.  The defendant and the victim did not know each other.  The defendant attacked the victim under the influence of drug as the defendant had consumed a mixture of heroin, midazolam and methamphetamine about 6 hours before the offence.  It was submitted that while at the time of the offence the defendant was sober and knew what he was doing, his self-control ability was affected by the drugs.  It was further submitted that the injuries sustained by the victim were not very serious, that the victim was discharged the same day after the treatment and the victim had fully recovered.

8.Mr Lam also referred this court to a number of other cases in which the starting point for this offence imposed by different judges in different cases range from 15 months to 3 years and 6 months[1].

9.In mitigation, a letter written by the defendant was submitted.  The defendant indicated that he was remorseful and would like to apologize to Mr So for what he had done.

Sentence

10.Wounding with intent is a very serious offence.  As Mr Lam has rightly pointed out, there is no sentencing guideline in respect of this offence.  The range of sentence for this offence is wide, usually from 3 to 12 years’ imprisonment.

11.Reports on the defendant’s fitness to plead were obtained when he appeared in the magistrates’ court.  Both reports revealed that the defendant had longstanding problem of substance abuse. The reports confirmed that the defendant does not have any psychiatric symptoms and is fit to plead and serve any sentence that the court deems appropriate.

12.The defendant has 26 criminal conviction records, 3 of which relate to assault occasioning actual bodily harm while the others mainly relate to dangerous drugs or theft.  His last conviction for offence involving violence is in 2004.  He has no previous conviction for wounding with intent.  In the circumstances, I will not regard the defendant as a repeated offender of offences involving violence. 

13.This is a sad case.  Mr So was attacked for no reason.  I have viewed some photographs depicting Mr So’s injuries.  It can be seen from the photographs that the laceration on Mr So’s right thigh was a long one, a 9cm laceration.  According to the prosecution, Mr So has recovered fully and there is no evidence of any permanent disability. 

14.It was said that the defendant could not control himself as he was under the influence of drug.  This problem is known to the defendant for a long time.  Instead of quitting the drug taking habit, the defendant now used it as an excuse for the commission of the offence. I must say that I have no sympathy for this and the defendant should shoulder the responsibility of his impulsive act under the influence of drug.

15.In determining the appropriate starting point for the offences in the present case, I have considered the facts of this case including that the attack was not premeditated, there was no provocation from Mr So prior to the attack, that the defendant was under the influence of drug which affected his self-control ability but which does not qualify as a mitigating factor, that a 15cm cutter was used in the attack, Mr So was stabbed again when he intercepted the defendant and the injuries sustained by Mr So were not very serious and no permanent disability was caused.  I consider the appropriate starting point for each charge is 3 years and 3 months’ imprisonment.  Given the defendant pleaded guilty to both charges, he is entitled to the usual 1/3 discount for his guilty plea.  The sentence for each charge is thus reduced to 26 months.  Given the two charges arose from the same incident and taking into consideration the totality principle, I order that the sentences for the two charges to be served concurrently.  I hereby sentence the defendant to a total sentence of 26 months’ imprisonment.