HKSAR v. Dinh Khac Muoi

DCCC 467/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 467 OF 2017

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Reasons for Sentence

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1.The defendant has pleaded guilty to a single charge of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, the offence being committed on 10 March 2017.

2.In summary, the defendant attacked his own son with a kitchen knife, causing injury to his face.

3.The defendant is a married man with both a son, aged 15, and a daughter, aged 18, from a previous marriage.  They all live together at the same location in Sham Shui Po.

4.The defendant returned home in the evening of 10 March and was found by his daughter and wife in the living room smelling of alcohol and yelling and acting emotionally.  The daughter went to her own room and disregarded the defendant, and the wife of the defendant and the defendant engaged in an argument over his previous drinking and smoking.

5.The victim, the son, returned to the home at about 10.15 that evening.  He had been to a Scout event.  There was then a dispute arose between them and a physical struggle over the issues raised by the defendant’s wife.  In response, the defendant went to the kitchen, took hold of a kitchen knife, which was in total 11 inches long with a 6.5 length blade, and attacked the victim with the knife.  The facts say he chopped his face once, and the victim was aware that he had been chopped between his eyes and on his nose and there was blood coming from the wound.

6.Eventually the police were called and the victim was escorted to Caritas Medical Centre, and a 10-centimetre laceration was found on his face, and that required 11 stitches.

7.The defendant was arrested on the rooftop of the building.

8.Under record of interview, the defendant made a full admission to the offence, admitted he had been drinking, admitted he had been in a dispute with his wife and finally a dispute with his son; that he had grabbed a knife and chopped the son.

9.The facts I have show the victim was hospitalised and discharged from the children’s ward on 20 March 2017. That is, some 10 days later.  He has had follow-up consultation and is scheduled for a laser treatment to remove the scar that now exists on his face.  In the course of the reports I have read it would appear that there is an optimistic view as to the cosmetic scar that the victim has that it can be largely eliminated.

10.As far as the defendant’s antecedents are concerned, we know that he is aged 45 years old, receiving secondary education to Form 1 in Vietnam.  He was a construction site worker and appeared to be in good health, and lived at home prior to his arrest, with his wife and the stepdaughter.

11.The defendant has a total of 14 previous occasions in court.  He has been convicted of offences of dishonesty such as burglary and theft and offences of intimidation and possession of dangerous drugs and trafficking in dangerous drugs.  The defendant has been sentenced to prison and to drug addiction treatment centre.  More recently, in 2012 he was imprisoned for theft and received a 20-day sentence in August of 2012 for a section 19 wounding offence.  His longest period of imprisonment is back in 1999, when he was sentenced to 16 months’ imprisonment for trafficking in a dangerous drug.  The defendant has a poor criminal record, with a previous conviction for a similar offence.

12.In respect of the sentence, I called for a background report on the defendant and also for some indication of the impact of the offence on his children and family.  The background report points out the defendant’s failure to lead what could be described as a law-abiding life. He has repeated transgressions of the law, taking dangerous drugs since the early 1990s, and failing to quit the habit despite various drug withdrawal programmes.  Also, the defendant has more recently taken the habit of alcohol consumption, and the alcohol seriously affects his temper control.  His family had tried to dissuade him from this and this had caused him to lose his temper.

13.The defendant now expresses a sense of guilt and shame towards his misdeeds.  He is prepared to bear the legal consequences for committing this offence.  He wishes for a family reunion.

14.The victim impact report on the victim himself, who is now almost 16 years old, makes for difficult reading.  The conclusion of the clinical psychologist who interviewed the son is that he shows signs of suffering from post-traumatic stress disorder as a result of the wound caused by his father to him.  It says this is the result of the magnitude of the trauma and the close relationship with the perpetrator and the degree of personal injury.  It is believed that these symptoms that display the post-traumatic stress disorder may persist or warrant long‑term psychotherapy. He shows feelings of detachment and estrangement from both his mother and sister.

15.But he is described, fortunately, as a co‑operative, receptive young man, and his response to psychotherapy is satisfactory.  So there is a guardedly optimistic view of what might happen to the son.

16.There is also an impact report on the stepdaughter.  She also has indicated anger at her stepfather and is said to be not in touch with her feelings as a result of this domestic violence incident. She is considered to have a need for psychological treatment in establishing trust and coping strategies.

17.One can see that the offences have an impact on both of the children that goes beyond the physical injury suffered by the victim.

18.Notwithstanding that, I have letters that have been written by the defendant’s wife, the defendant himself, and also the victim, all of them asking me to deal with the defendant leniently; although the son has indicated he does not wish to live with his father any more, for understandable reasons.

19.Now turning to the approach to sentence, there is no actual guideline for the section 17(a) offence of wounding with intent. There are a number of cases in which the courts have indicated that having regard to the severity of this offence, the starting point for sentence should range between 3 to 12 years’ imprisonment, and there are a number of factors which of course could aggravate that sentence and a number of factors which necessarily may mitigate that sentence.

20.Possible mitigating factors in a case like this would be the spontaneous nature of the offence, the fact that the defendant has pleaded guilty, avoiding causing his son to give evidence, his desire for reconciliation with the victim, and the adverse inference any sentence may have on the family itself.  The aggravating factors would come out of the injury that was actually caused to the son, the fact this was an assault within the family, that a close personal relationship existed, the fact that the offence arose out of the defendant’s own inability to control his consumption of alcohol, and the fact that the defendant has, by this pattern of behaviour, terrorised his family over time.

21.The other factor that is of importance in this case is the nature of the weapon that was used.  The defendant, although taking the knife as a weapon of opportunity, still selected a bladed knife capable of causing serious injury, and then used that knife to strike his son on the face in an area where serious injury could be caused.  He is fortunate that the injuries are not more serious than they are and that the injuries appear, or the injury itself, appears to be one which can be largely rectified over the course of time.

22.Taking all these factors into account, I have decided that the appropriate starting point for sentence should be in excess of the 3 years indicated as being the lowest point at which such an offence should normally and routinely be sentenced, and I consider the appropriate starting point for sentence in this case should be one of 4 years’ imprisonment.

23.The defendant is entitled to a one-third discount because he has indicated his remorse at an early stage and indicated plea from an early stage.

24.That, by my calculations, will lead to a final sentence, after a deduction of one-third for plea of guilty, to a sentence of 32 months’ imprisonment, and that will be the sentence of the court.