HKSAR v. Yip Wai Tong

DCCC 308/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 308 OF 2017

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Reasons for Sentence

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1.The defendant has pleaded guilty to two charges, firstly being criminal intimidation, and the 2nd charge, wounding with intent, contrary to section 17(a) of Cap 212, the offences being committed on different days; the 1st charge on 26 October, and the 2nd charge later, on 8 January.

2.The essential facts that the defendant has agreed to are that the victim, PW1, lived with his family in a flat in an estate in Hung Hom.  The defendant resided in a flat that was directly above the victim’s flat, and the victim and the defendant were known to each other, both being men -- the defendant is a man in his 60s, and the victim is of similar age.

3.There has, since about year 2000, been a history of complaints issued by PW1 about banging noises coming from the defendant’s flat, and this has led to the defendant and the victim becoming on poor terms with one another.

4.In respect of the first offence, the victim said that he heard again banging noises generated from the flat on 26 October around about lunchtime.  He complained to the management and a security supervisor came over.  They went to the floor where the defendant was to make inquiries.  When they arrived near there, the defendant was seen to be standing at the stairs between what was the 18th and 19th floor holding an axe in one hand and a chopper in another.  The defendant swore at PW1 and told him he would chop him to death.  He dashed towards PW1, and then PW1 escaped from him, and told the defendant that he had already called the police.  The defendant was later seen to put the items, the chopper and the knife, into a bag.

5.The police later made inquiries and arrested the defendant for criminal intimidation.  At the time, the defendant denied it, and later made a cautioned statement.

6.The 2nd charge occurred on 8 January 2017. The victim left his flat at 7 am in the morning.  As he was closing the iron grille to his premises, the defendant emerged from the staircase, with an axe in his left hand and a chopper in his right hand, and dashed towards the victim.  He chopped at PW1’s head with the chopper and told him to die.  PW1 ran away, screaming for help, and the defendant gave chase and chopped him from behind.  There was a struggle between them.  Other people came on hearing the noise, and went to assist the victim.  The police were called and made inquiries, and the defendant admitted he had carried the chopper and axe and attacked the victim.

7.The victim was sent to hospital.  The injuries that were found were as follows:  three laceration wounds over the scalp, located at the left forehead, which were 11 centimetres; the left parietal region, which was 5 centimetres; and the posterior midline, which was at 7 centimetres.  There was a laceration at the left angle of the jaw and a laceration on the left hand, and the treatment was by stitching. 

8.There have been subsequent medical reports on the victim.  The most recent report is on 14 January 2017, which shows the defendant was treated with stitching, antibiotics and dressing.  The stitches were removed in general Outpatient Clinic.  In February of 2017 laceration wounds could still be seen over the scalp, and he was placed under the care of Neurosurgery.

9.Finally, the court ordered a further statement from the victim about his current condition.  The victim still makes some complaints of disturbance to his sleeping.  He is still anxious.  He indicates he had received a total of 30 stitches to his head, face and arms, and the victim also made complaints of headache and had a complaint of left-sided headache since June of 2017.  There was a report of 13 October 2017 where a diagnosis of headache was made, but that would appear to be the only continuing difficulty that the victim faces. 

10.There is no information about the continuing cosmetic nature of the injuries.

11.Turning to the defendant, he is aged 66.  He has one previous conviction in December of 2005.  That was for a section 19 offence of wounding.  He received a short sentence of imprisonment for 14 days and was fined $2,000.  My understanding is that this is the same victim.  His antecedents show that he was born in China and lived in Hong Kong since 1958.

12.He was arrested in January 2017 for this offence and was initially detained at Siu Lam Psychiatric Centre.  He lived with his son and daughter at the relevant location.

13.As there was indication there may have been psychiatric difficulties with the defendant, I obtained psychological and psychiatric reports on him.  The psychological report indicated that the defendant was a reoffender of violent crime against the same victim.  He was in fact described as generally an even-tempered person and showed pent-up frustration which resulted in outbursts of anger in respect of this offence. He has no mental disorder.  He would need psychological service for emotional management; I believe called anger management.  There is nothing remarkable about the defendant’s psychological report, and it would appear that his risk of recidivism really depends on whether he continues to live in close proximity to the victim, but is described as moderate in this case.

14.The psychiatric report described that the defendant has not suffered from any mental illness and is mentally stable.

15.There was also a background report obtained which describes the defendant as now showing deep remorse.  He considered his actions to be momentary and impulsive.  He now considers himself to be foolish and impulsive and attributes the attack to his mind being triggered by his loss of dignity.  He saw the solution to move away from where the victim is to another public housing unit if possible.  It is hoped that that can be done in the future.

16.The defendant’s history appears to be again unremarkable, and the trigger point for his loss of temper and what appears to be out of character actions is his involvement with this particular victim.  So if they can be kept, as it were ‑‑ if they can live in separate areas and not come into contact ‑‑ the defendant’s risk of recidivism is low.

17.Turning to the offences of which the defendant has been convicted, on the first offence there is no tariff at all.  As far as the criminal intimidation is concerned, it is a fairly serious one of its type because the defendant not only threatened to kill but was also carrying weapons when he made that threat.

18.However, the major offence the defendant faces is the 2nd charge, wounding with intent, under section 17(a) of Cap 212.  There is no actual tariff for this offence.  However, there is what is described as a usual range of sentencing.  That range is a starting point for sentence after a plea of not guilty for a person of clear record which would range between 3 to 12 years’ imprisonment.  For a person of clear record who pleads not guilty and is convicted after trial, there can be a sentence of between 3 to 12 years’ imprisonment.

19.The offence itself can contain a number of both aggravating and mitigating factors, and the existence of those will determine whereabouts on that broad range of sentencing the starting point should occur.

20.The aggravating factors in this case would be the proximity of the parties to one another; the nature of the weapons used - bladed weapons capable of causing serious injury; the nature of the injuries caused - lacerations to the face; the fact that 30-odd stitches were needed; the continuing psychological disturbance to the victim; and the fact that the attack itself is what could be described as a kind of revenge attack.

21.Of the mitigating factors, there is the defendant’s plea of guilty and his remorse; the fact that the offences appear to be out of character for him; otherwise, the way in which he is generally well spoken of by other people; and his support of his family.  These are all factors that must be considered in determining the appropriate starting point.

22.I consider when taking all these factors into consideration, and especially the fact that these were attacks, in the 2nd charge, by way of use of a knife, and that is an important factor when determining the starting point for the 2nd charge, what I should do now is indicate the starting point for each charge and the final sentence.

23.On the 1st charge I will take a starting point at 6 months’ imprisonment and reduce that to 4 months’ imprisonment for the defendant’s plea of guilty.

24.On the 2nd charge, I consider that, given the fact of the nature of the injuries and the way in which the attack progressed, the starting point initially should be one of 4½ years, and the fact that there is the aggravating factor of this being a second attack on the same victim should increase that starting point to one of 57 months.

25.After the deduction for a plea of guilty, that would lead to a sentence on the 2nd charge of 38 months.

26.I have decided that the overall sentence of 38 months is sufficient to reflect the gravity of both these offences. Even though they were committed on separate occasions, they form part of a pattern of behaviour, and what I shall do is order that the sentences be run concurrently, one to another; a total of 38 months’ imprisonment.