HKSAR v. Ng Mei Cham

DCCC 144/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 144 OF 2017

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Reasons for Sentence

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Charge

1.The Defendant pleads guilty to a charge of assault occasioning actual bodily harm.

Facts

2.At about 14:30 hours on 28/10/2016, Mr. CHAN Kai-wah (“PW1”) drove a private car with registration mark “KUK KUK” to the car park, ground floor, Ning Yeung Terrace, Bonham Road (“the Car Park”).  At the same time, the Defendant, who was a resident there, drove another private car with registration mark FJ3008 about to leave the Car Park.

3.Both PW1 and the Defendant stopped their vehicles at the Car Park entrance and alighted from the vehicles. They had an argument on whether the stopping position of PW1's vehicle would cause inconvenience to other users.  Two security guards saw the argument.

4.During the argument, the Defendant went to the garbage room at the Car Park and picked up a knife (12 inches in length) which was originally placed on a table. He rushed back to PW1 with the knife and shouted “I want to stab you to death”. PW1 felt scared and stepped back. He lost his balance and fell onto the ground, whereupon the Defendant seemed to try to stab him. The knife came into slight contact with PW1 at his waist about 3 to 4 times.  PW1 felt pain, then rushed out of the Car Park and stayed at the front gate of the Car Park. The Defendant returned to the garbage room to put down the knife.

5.The security staff of the Car-park brought PW1 to the security room.  When the police arrived, PW1 identified the Defendant and a knife seized from the garbage room. 

6.Under arrest and caution, the Defendant stated that he had picked up a knife at the garbage room for self-defence.  He was afraid that PW1 would hit him, so he picked up a knife from the garbage room and stabbed PW1 with it.

7.PW1 was conveyed to the hospital and diagnosed to have redness on the left side of his waist.  He was discharged immediately after treatment.

Mitigation

8.The Defendant is 58 years of age.  He was born in the Mainland and settled in Hong Kong in 1979.  He had received secondary education.  He first worked as a construction site worker.  He then started a business specializing in the supply of dried seafood and farm products.  His company is now one of the leaders in the field.  He has about 10 employees and an annual turnover of over $100 million.  He has one previous conviction in 1988, resulting in a suspended sentence for aiding and abetting illegal immigrant, his own nephew. 

9.According to the written opinion dated 16/3/2017 of Dr. LIANG Hin Suen, the doctor in charge of The Hong Kong Sanatorium & Hospital, he was diagnosed to have blood cancer at advanced stage in 2011.  He received immunotherapy to control the illness.  From April to September 2016, just before the present offence of 28/10/2016, he had to go through immunotherapy again.  Patients receiving such treatment would suffer tremendously both physically and mentally during and immediately after treatment.   The psychological and psychiatric side-effects included mood changes, restlessness, insomnia, depression and even manic reaction.  His illness may progress suddenly to a more aggressive form which is then rapidly fatal.  He is due to have a surgical operation 10 days after today to have his spleen removed as entailed by his deteriorating condition. 

10.He has been living in Ning Yeung Terrace for over 10 years.  PW1 was 29 years of age, a visitor to the location.  The statements of the security staff referred to the abusive behaviour of PW1 in refusing to move away his car KUK KUK then obstructing the way.  He lost his self-control, went to get a knife from the garbage room about 8 metres away, and held it in a jabbing movement, eventually causing PW1 some minor injury. 

11.Mr. Chung asks me to consider a non-custodial sentence.  In support of this is the case of Secretary for Justice v WADE, Ian Francis [2016] 3 HKC 274 where the Court of Appeal accepts that, apart from the facts of the case, the personal circumstances of a defendant may also qualify in an appropriate case as “exceptional circumstances” to suspend a custodial sentence. 

Sentencing the Defendant

12.On the one hand, PW1 was doubly wrong in refusing to move away his car and becoming abusive towards the Defendant.  On the other hand, the Defendant was fast inflamed and exceedingly wrong when he went off in the heat of an oral argument to the garbage room to get a knife to attack PW1.  It was a savage act that cannot be condoned in a civilized society.  I take a starting point of 9 months’ imprisonment.  His timely plea of guilty shall attract a one-third discount. 

13.There is medical evidence that the Defendant was rendered weak of self-control as a corollary of his illness and treatment.  The present proceedings are no doubt a tough lesson for the Defendant, who has already had enough of his own medical condition to worry about.  His health was poor and is going downhill.  

14.In my judgment, his personal circumstances, his medical condition to be precise, as at the time of the offence and in the foreseeable future may qualify as exceptional circumstances for the sentence to be suspended.  I do not consider a fine as alternative since I have also to protect the society from a repeat incident now that he certainly knows his part enough to make serious effort to keep the peace notwithstanding the impact of his illness and treatment.  A suspended sentence shall keep him on a rein for a good while. 

15.The sentence of 6 months is to be suspended for 24 months.