HKSAR v. Ma Wai Hing

DCCC 605/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 605 OF 2017

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REASONS FOR SENTENCE

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1.The defendant has pleaded guilty to two charges. The first charge is one of wounding with intent, contrary to Section 17(a) of the Offences Against the Person Ordinance, Cap.212.The second charge is one of attempt to pervert the course of public justice, contrary to Common Law.

THE FACTS

2.At all material times, PW1 and her ex-husband (the defendant) lived in the same flat in a public housing estate in Wong Tai Sin, Kowloon.

3.During the night of 29 May 2017, the defendant asked PW1 to lend him HK$500 to buy dangerous drugs.  PW1 refused.  The duo quarrelled.  The defendant started throwing things, later went to the kitchen to grab a hammer.  The defendant held the hammer and asked whether she would give him money.  PW1 was frightened and called the police.  The defendant used the hammer to hit her hand for 4 times and her head  for 3 times, when she was raising her hand to try to protect her head.  PW1 then pushed away the defendant and escaped.  The hammer broke into two pieces amidst the attack.

4.The police subsequently arrived at the scene and PW1 was sent to the hospital.  She was treated and discharged on the same day. She was diagnosed as having injuries as follows :-

(i) Swelling / haematoma on left forearm, wrist, back of hand, index finger, bilateral scalp; and

(ii) Laceration on scalp.

5.The defendant was arrested at home.  Under caution, he admitted using a hammer to attack PW1 as he wanted to buy dangerous drug due to addiction but PW1 refused to give him money.

6.PW2 is the son of the defendant.  He visited the defendant in Lai Chi Kok Reception Centre on 29 June 2017.  During the visit, the defendant told PW2 to ask PW1 to withdraw the charge.  PW2 answered that that was impossible, and the defendant should be punished for the wounding.  The defendant then said to PW2, “I will be in jail for 6 months at most.  If your mother does not withdraw the charge, I will mess her up again” (我就整多佢一鑊).  The defendant and PW2’s conversation lasted for about 10 minutes in total.  PW2 felt scared after hearing the defendant’s words.

7.On 11 July 2017, the defendant was arrested and cautioned.  The defendant confirmed that he said the words in question.

MITIGATION AND PERSONAL CIRCUMSTANCES

8.The defendant is 47 years old. He divorced with his wife in 2016. However, they are still living under the same roof in a public housing estate. They have a son who is 22 years old studying in university in Taiwan. The defendant received up to primary education. He was a causal worker in a construction site earning $700 a day.

9.The defendant has 4 previous convictions. Three of those were related to dangerous drugs.  They are not of similar nature to the present offences.  The defendant admitted that he is a drug addict.

10.The incident happened because the defendant was under the influence of drugs that led to mood change and irritation. Initially he just intended to use the hammer to intimidate his ex-wife.  After a heated argument, he attacked her foolishly. He is very remorseful now. It is lucky that his wife is now fully recovered.

SENTENCING CONSIDERATIONS

Charge 1: Wounding with intent

11.It is clear from the cases 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 to 12 years. 

12.In HKSAR v Chan Chun Tat CACC 317/2012 the court listed a number of relevant factors to be considered in determining the gravity of the offence and the culpability of the offender. The usual ones will be 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.

13.In the present case: -

(i) The relationship between the defendant and PW1 were ex-husband and ex-wife.

(ii) The attacks were launched when PW1 refused to lend the defendant $500 for buying dangerous drugs.

(iii) It was a typical type of domestic violence incident where an angry argument escalated out of control and one party resorted to violence.

(iv) The defendant started throwing things and then threatened her with a hammer.

(v) Hammer was a dangerous and lethal weapon when execute attacks on human beings. It was broken into two parts after the attack.

(vi) The attack was focused on the vulnerable part of a human body: the head. PW1 put up her hand to ward the attack off. It is sheer luck that she is now fully recovered.

(vii) PW1 simply was defenceless and she raised her hand to protect or defend herself. As a result, her left upper limb and her head suffered injury. She was discharged from the hospital on the same day after treatment.

(viii) The defendant’s attack on an unarmed victim was vicious and excessive. He did not show a shred of mercy. He was under the influence of drugs.

14.In relation to the wounding, section 17 charge, it was a malicious assault on his ex-wife. In my view, there needs to be a significant element of personal and public deterrence in sentencing the defendant. The courts must make clear that violence will never be regarded as an acceptable way of dealing with family issues.

15.Having heard the mitigation on his behalf and taking these facts into account and I consider that a proper starting point would be one of 3.5 years’ imprisonment.  With his guilty plea, the sentence is reduced to 28 months’ imprisonment.

Charge 2: Attempt to pervert the course of public justice

16.There is no sentencing tariff for this kind of offence as circumstances of its commission and thus its criminality vary from case to case: HKSAR v Chu Ka Shing CACC 104/2001.

17.In A-G v. Yeung Kwong-chi [1989] 1 HKLR 266, (Per Cons VP) the Court of Appeal held that the normal sentence for an attempt to pervert the course of public justice was one of immediate imprisonment and this was to be the sentence unless there were 'abnormal' circumstances. The Court observed that such sentences were necessary:

"... not only to punish and deter such wicked behaviour, but to mark the absolute repugnance with which the public views such deliberate abuse of the criminal process."

18.The defendant’s conduct would impede police investigation and impair the capacity of a court to do justice. It is accompanied by threats of violence to his wife through his son if she does not withdraw the charge.   Such acts are reprehensible and cannot be tolerated in a civil society. In my view, a short term of imprisonment will be appropriate.  I will adopt a starting point of 12 months. With the guilty plea, the sentence is reduced to 8 months’ imprisonment.

TOTALITY

19.As the two offences are separate and distinct, the terms should be ordered to run consecutively. However, such will no doubt result in too excessive a sentence.  Therefore, having considered the totality principle, I order 4 months of the sentence of Charge 2 to run consecutively to the sentence of 28 months for Charge 1.  Therefore, a total term is 32 months’ imprisonment.