HKSAR v. Un Sut Ha

DCCC 1112/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1112 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 section 17(a) of the Offences against the Person Ordinance, Cap 212.

2.The particulars show that the defendant on or about 20 October 2016 at her residence in Yuen Long unlawfully and maliciously wounded Ng Hak Kau with intent to do him grievous bodily harm.

Facts

3.This is a case of domestic violence.  The victim, Mr Ng, aged 61, is the husband of the defendant, aged 53.  The Amended Summary of Facts to which the defendant admitted show that the couple have been married for nearly 30 years.  They have lived together in the flat particularised in the charge.  In recent years they had slept in separate rooms in the flat. 

4.At the small hours on 20 October 2016 while the victim was sleeping in his room, the defendant entered his room and struck him multiple times on his head with a 3 to 4 feet long power twister which she picked up in the living room.  The victim was injured and fled from the flat. He sought assistance from the security guard of his residence who reported the case to the police.  The victim was sent to Tuen Mun Hospital for treatment. The medical findings of the victim’s injuries from the A&E Department were: (i) swelling on both forearms; and (ii) lacerations on scalp and left face.

5.The victim was then admitted to the Department of Neurosurgery.  He was found to have: (a) multiple scalp deep laceration wounds with size up to 7 cm irregular in shape; (b) a 3 cm laceration over his right forehead; (c) a 3 cm facial laceration below the left eyebrow; and (d) an irregular laceration over the upper posterior helix of left ear.  Computed tomography of brain showed scalp haematomas and soft tissue swelling over both sides of scalp and left periorbital region.  There was no acute intracranial haemorrhage.  He had wound exploration and suturing performed.  His condition was stable after the operation.  He was discharged 4 days later i.e. on 24 October.

6.Upon arrest, the defendant under caution admitted that she had hit the victim with a power twister.  In the subsequent video-recorded interview, the defendant accounted the following version:-

(a) at 0220 hours on 20 October 2016 while she was in the living room, the victim suddenly grabbed her neck from behind and suffocated her with a pillow. She then fought him off, then the victim stopped his act;

(b) the victim walked to his room and the defendant stopped him closing the door by blocking it with a pillow;

(c) the defendant took the power twister in the living room and assaulted the victim. At the time of the assault, the victim was closing the window blind and about to sleep on bed;

(d) the defendant was furious because the victim had grabbed her neck and she was not strong enough to take the dumbbell, so instead she took the power twister;

(e) she struck the victim with force for two to three times;

(f) the victim then snatched the power twister and the defendant pushed him out of the room. She locked herself in the room for fear that the victim would retaliate; and

(g) when she madly struck the victim with the power twister, she was not thinking of anything.

7.Despite the defendant’s claims under caution, the defendant in fact, and she admitted, was not acting out of self-defence when she wounded the victim.

Photographs

8.I have looked at the photographs depicting the injuries of the victim, the crime scene and the power twister.  I have also asked the prosecution to confirm the stitches received by the victim.  However, there is no mention in the second medical report of Dr Wong of the Department of Neurosurgery.

Previous criminal conviction

9.The defendant has no previous criminal record.

Mitigation

10.The defendant, aged 53, was born in China.  She settled in Macau in 1975.  She got married with the victim in 1988 and they came to Hong Kong in 1991.  She is a housewife.

11.On the day of the offence, the victim told her that he would bring his girlfriend in China to live together in the same flat. The defendant was very upset and she suddenly lost her self-control.  She picked up the power twister to commit the present offence.

12.She was very remorseful for what she had done. After the offence, she took the initiative to join a course conducted by professionals including psychologists and medical doctors in order to learn how to control her emotions and to release upset feelings.

13.In respect of her relationship with the victim, they both have no intentions to get a divorce.  In fact, the husband wrote a letter to the court stating that the defendant has all along been a very good wife and a good mother.  He had an affair 10 years ago and since then the defendant was under great pressure.  He mentioned that he had fully recovered from the injuries and started working on 9 November last year.  He urged the court to impose a lenient sentence on the defendant.

14.The son of the defendant also wrote a letter to the court.  He described the defendant a devoted mother.  The defendant was extremely upset when she learned of the victim having an affair. 

15.Mr Lin for the prosecution submitted two authorities for the court’s consideration, namely HKSAR v Chan Chun Tat CACC 317/2012 and HKSAR v Wong Luk Sau [2013] 2 HKLRD 201. 

16.Mr Lo for the defendant submitted that the court should adopt the same starting point as that of Wong Luk Sau, i.e., 2 years and 3 months’ imprisonment.

Reasons for Sentence

17.In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Lo and the letters written by the defendant’s husband and son.

18.In HKSAR v Wong Luk Sau, the Court of Appeal said that there were no sentencing guidelines for this offence.  The appropriate sentence depended on all the circumstances of each case.  The range of the prison term, namely 3 to 12 years was not a sentencing tariff and the court was not obliged to impose 3 years’ imprisonment as a minimum term.

19.In HKSAR v Chan Chun Tat, the Court of Appeal has given a non-exhaustive list of factors usually relevant to the sentence as follows, at paragraph 49 and 50:-

(1) the extent to which the assault was premeditated;

(2) the reasons or motivation underlying the assault upon the victim;

(3) the mental or emotional state of the assailant at the time of the assault;

(4) whether alcohol or drugs contributed to the actions of the assailant;

(5) whether the assault was committed by the assailant alone or as part of a group;

(6) the type of weapons employed;

(7) the level of force or aggression and the persistence with which the assault was pressed home;

(8) the injuries caused to the victim;

(9) the effect of the assault upon the victim and those close to him or her.

20.In paragraph 50:-

“In arriving at an appropriate sentence the court will have regard not just to the need to punish the offender for his conduct, but also to the sentencing principles of deterrence, both general and individual, and, in appropriate cases, the need to denounce the resort to violence.”

21.The facts of the present case show that it was a provoked attack on the victim.  The victim told his wife, that is the defendant, that he would bring his girlfriend in China to Hong Kong and live together under the same roof.  As a wife, the defendant was naturally very upset and angry upon hearing this.  However, she should not have reacted violently.

22.The courts take a serious view of domestic violence.  Offences of domestic violence cannot be tolerated and are strongly to be deprecated for which deterrent sentences are appropriate.  See HKSAR v Lee Kin Wah, HCMA 990/2009.

23.In the present case, it is noted that the defendant committed the present offence alone and there was no element of premeditation.  She lost control on the spur of the moment and grabbed a weapon that was to hand.  The weapon used was not as lethal as a beef knife.

24.In respect of the injuries suffered by the victim, some photographs were taken on the offence day after the victim had received the stitches to his wounds.  The injuries as shown in the photographs are serious.  He had multiple deep laceration wounds on his scalp and was hospitalised for 4 days.

25.I just remember that I have to mention one thing about the claims that the defendant made under caution.  Mr Lo said that that might not have happened on the offence date. 

26.Having considered all the circumstances of the case, I adopt a starting point of 2 years’ imprisonment. 

27.I have considered HKSAR v Ngo Van Nam CACC 418/2014.  The Court of Appeal at paragraph 222 held that:-

“A one-third discount from the starting point taken for sentence is to be afforded to those defendants who indicate at the plea day that they intend pleading guilty.”

28.The defendant indicated her plea of guilty at the District Court plea day hearing on 20 December 2016.  The case was adjourned to today for sentence.  She is therefore entitled to a one-third discount for sentence.  Therefore, the sentence is reduced to 16 months’ imprisonment.

29.I will further reduce her sentence by one month for her clear record.  The defendant is sentenced to 15 months’ imprisonment.