HKSAR v. Wong Po Kong

DCCC 829/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 829 OF 2016

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of wounding with intent, contrary to s 17(a) of the Offences Against the Persons Ordinance, Cap 212.

Facts of the case

2.Madam Li Hau Lan, aged 45 (PW1), a married garage owner, started an extra-marital relationship with the defendant in 2010.

3.In 2013, the defendant began to work in Lam Keung Garage (the Garage) situated at G/F, 30-32 Heung Shing Street, Tsuen Wan which was owned by PW1 and her husband.  The defendant and PW1 quarrelled from time to time.

4.At about 9 am on 25 November 2015, the defendant was found sleeping on the back seat of PW1’s private car parked next to her home.  There is no dispute that the said car was allowed to be used by the defendant.  PW1, her husband and the defendant then proceeded to the Garage by driving the same car.

5.At around 9:22 am, the defendant was captured by the CCTV taking the plastic hammer in question from the said car to the Garage.

6.While working in the Garage, the defendant told PW1 twice that he wanted to kill her for the incident happened the day before, that was about PW1 reprimanding him for arguing with other colleagues in the Garage.  However, PW1 did not take it seriously.

7.At about 11:23 am on the same day, the defendant told PW1 that he was resigning and wanted to have his salary paid. While PW1 was turning around to get her wallet, the defendant suddenly picked up the hammer and hit it on PW1’s head from behind, causing a laceration.  The defendant further grabbed PW1 on her neck from behind and dragged her onto the ground and towards the exit of the Garage.  The defendant also attempted to hit PW1 again with the hammer but to no avail.  The assailment was only put to a halt by another employee of the Garage.

8.PW1 was then accompanied by an employee to go to the hospital.  She was found to have a 5 cm laceration with bleeding over the occipital region of her head and scalp haematoma at her left parietal-occipital region.  PW1 received 7 sutures for her wound before she was discharged on the same day.

9.The defendant continued to disturb PW1 by waiting PW1 near the Garage and asking her for salaries.  On 16 July 2016, the case was reported to the police.  On 18 July 20016, the defendant was arrested, under caution, he said that:-

(a) On 25 November 2015, he confronted PW1 about her sexual relationship with a man in Shenzhen and PW1 swore at him;

(b) In the heat of the argument, he happened to see a plastic hammer and picked it up to hit PW1 once, the offence was not planned;

(c) He saw PW1 pressing her head but he still dashed forward and dragged her;

(d) He admitted the hammer seized was the weapon he used at the material time;

(e) He agreed that he was captured by the CCTV and the car was believed to be a client’s car. He drove the car and slept inside the car near PW1’s home as it was too early to go to work. Three of them then went to the Garage together by the car. He then checked if any of the Garage tools were left in the client’s car as requested by PW1.

Mitigation

10.The defendant is 46 years’ old, married with two children aged 2 and 5.  He is currently working as a driver earning $20,000 a month and living with his family and elderly parents.  He is regarded by his wife as a responsible father and a filial son by his parents.  I have also had regard to the mitigation letters written by the defendant, his family members and ex-employer.  He had a previous criminal record involving violence in 2007 and was sentenced to 20 months’ imprisonment.  That conviction was about assaulting his ex-girlfriend’s mother.

11.Background, psychiatric and psychological reports of the defendant have been called for.

12.It was revealed that the defendant had been remanded in the psychiatric centre in 2006 for report in respect of the previous offence.  In that case, he attempted to suffocate his ex-girlfriend’s mother as the latter disagreed their courtship.  The defendant was noted to have adjustment problems with depressive reaction at that time and was suggested to have psychiatric follow-up at the outpatient clinic.  He then attended the outpatient appointment as suggested for several times and was then defaulted from follow-up upon release from prison.  He reported that he remained well afterwards, with no fluctuation of mood observed.

13.In respect of the present offence, he met PW1 in 2010 at a casino in Macau.  PW1 was married and they developed extra marital relationship since then.  As PW1 indicated she would not divorce with her husband, the defendant also get married in 2011 but they maintained the intimate relationship and the defendant started to work for PW1 since 2013.  In April 2015, the defendant discovered the sexual relationship between PW1 and a man in the mainland and he felt very agitated with PW1’s disloyalty.  In November 2015, the defendant and PW1 had serious argument over staff management.  Out of rage, he lost self-control and committed the present offence without premeditation.

14.Considering his violent offending history, poor anger management, inadequate problem solving skills and the lack of effective stress coping strategies, the defendant’s risk of reoffending is considered to be moderate by the Government clinical psychologist.

15.The defendant expressed deep remorse after the commission of offence and was willing to bear the consequence of his criminal act.  As he wanted very much to take care of his eldering parents and young children, he asked for the shortest sentence.

Sentence

16.The maximum sentence for the present offence is life imprisonment.  It is clear from the authorities that there are no sentencing guidelines or tariff for the offence of wounding with intent.  In HKSAR v Hau Ping Chuen [2008] 4 HKLRD 673 the Court of Appeal referred to the usual range of sentence for wounding with intent being described as 3-12 years.  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.”

17.In sentencing, the court must look at the matters from all angles; the circumstances of the offence; the relationship between the defendant and the victim; but regard should also be had to public interest as well.

18.In HKSAR v Chan Chun Tat [2013] 6 HKC 225, the Court of Appeal 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

- the effect of the assault upon the victim and those close to him or her.

19.In the present case:-

(i) The relationship between the defendant and PW1 were lovers.

(ii) Although the defendant was seen bringing the hammer from the car to the garage earlier on the same day of the offence, the court cannot be sure he brought it solely for the purpose of attacking PW1.

(iii) The weapon was a hammer. Although it was a plastic one, but it was of heavy weight. This was certainly a dangerous and lethal weapon.

(iv) The attack was focused on the vulnerable part of a human body: the head.

(v) After the defendant picked up the hammer and hit it on the PW1’s head from behind, causing a laceration, the defendant further grabbed PW1 on her neck from behind and dragged her onto the grounds and towards the exit of the Garage. The defendant also attempted to hit PW1 again with the hammer but to no avail. The incident was only stopped by another employee of the Garage. The defendant’s attack on an unarmed lady victim was vicious. The defendant did not show a shred of mercy.

(vi) The attack on PW1 as a result of argument on staff management and defendant’s discontent on PW1’s affairs with another man was totally out of proportion.

(vii) This was clearly an intentional attack with a view to causing PW1 serious bodily harm. PW1 received 7 stiches on her head after the attack. Fortunately, the injuries were not among the most serious ones and PW1 could be discharged on the same day.

(viii) This is the second time the defendant committing similar offence involving violence. It is apparent that the defendant does not have the lesson learnt from the previous 20 months’ imprisonment.

20.Having considered all the circumstances and all the mitigation put forward on behalf of the defendant, I take a starting point of 4 years’ imprisonment.  As the defendant indicated his guilty plea before trial date is fixed, a full 1/3 discount is warranted.  The final sentence is therefore 32 months’ imprisonment.