HKSAR v. Su Zaoqiu

DCCC 348/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 348 OF 2017

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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.

Summary of facts

2.The Defendant and his elder brother had a verbal dispute at home.  The Defendant attempted to punch his elder brother but in vain.  The Defendant then went to the kitchen to get a chopper to chop on the forehead of his elder brother.  Their father picked up a walking stick to hit the Defendant until he dropped the chopper. 

3.When the police arrived, Defendant was arrested.  Under caution, he alleged that the father used a walking stick to hit him.  As such, he picked up the chopper for defence.  Due to his carelessness, he cut his elder brother by the chopper.

4.The elder brother sustained 5-cm laceration on the forehead and he received five stitches and was discharged on the same day. The Defendant sustained tenderness on left hand, redness on left elbow, bruising on left thigh and left hand, and abrasion on both hands.

5.The Defendant admitted that he unlawfully and maliciously wounded his elder brother with intent to do him grievous bodily harm.

Previous conviction

6.The Defendant has a clear record.

Mitigation

7.The Defendant is 48 years old, married and his wife lives in China.  He came to Hong Kong with his two other brothers in 2012 for family reunion.  Prior to the offence, he lived with his parents and the elder brother in a public housing unit in Tai Po.  The Defendant was born with hearing disability.  His left leg was injured in an accident in his teenage. He is unable to walk normally.  He received CSSA since his arrival in Hong Kong. 

8.The accident occurred over a minor incident.  That was　where to keep their slippers at home.  He is deeply remorseful and apologised to his elder brother for what he had done to him.  This was the first time he used violence towards his brother.  He undertakes not to re-offend again.

9.Both the father and the elder brother write letters to this court that they both wish the Defendant to be released early so that they can be reunited again.  The father said that the mother cried every day.  His elder brother has forgiven the Defendant for what he did to him and reminded the Defendant to take care of himself in prison.  Both of them are not in court today, except one of the Defendant’s other brothers.

Psychiatric report

10.Two psychiatric reports have been called at the time when the Defendant indicated his plea of guilty in May 2017.  Those reports said that the Defendant does not suffer from any kind of mental illness.

Sentence

11.As rightly pointed out in mitigation, that there is no sentencing tariff for this kind of offence. 

12.However, in HKSAR v Hau Ping Chuen [2008] 4 HKLRD 673, the Court of Appeal said that the usual range of sentence was between 3 to 12 years, but 3 years is not the minimum sentence to be imposed.

13.In HKSAR v Chan Chun Tat　[2013] 6 HKC 225 which has listed a number of relevant factors to be considered in determining the gravity of the offence and culpability of the offender. 

14.As stated in the summary of facts, this is a domestic violence case.  Today I am told that the incident took place over a minor argument as to where to keep their slippers at home.

15.In The Secretary for Justice v Hung Kar Chun [2011] 1 HKLRD 1083, the court commented that the court would not tolerate attacking another person with a lethal weapon such as a chopper or a knife on minor provocation or while having a dispute, and that the court would, in dealing with this kind of cases, impose more severe punishment as a deterrent.

16.In the case of Secretary for Justice v Chau Wan Fun [2006] 3 HKLRD 577, the court held that the attack took place in a domestic context and the victim had forgiven the offender did not deflect from the duty of the court to impose a sentence appropriate to the gravity of the offence.

17.In passing sentence, I do bear in mind of all the mitigating factors, including that his elder brother has already forgiven him and also in his written letter he asked the Defendant to take care of himself in prison.

18.The defence refer me to a number of cases, including the following two:-

(1) HKSAR v Wong Chi Hing, DCCC 820/2015. This was a domestic violence case. The Defendant husband took out a fruit knife and tried to stab the wife and told her that he would stab her to death and then committed suicide. Subsequently, the Defendant went to the kitchen to take out a chopper and tried to chop her. The wife grabbed hold of his hand to stop the attack. The wife received 2-cm laceration wound on her left hand. Wife had forgiven the Defendant, who received a sentence of 12 months after one-third discount on sentence.

(2) HKSAR v Un Sut Ha, DCCC 112/2016. The aged 61 victim husband was sleeping at the material time when the Defendant wife struck him with a power twister for multiple times. The husband suffered swelling on both forearms and laceration on scalp and left side of his face. Stitches were performed on his wounds. He was discharged four days later. The husband was fully recovered from the attack. The attack was subject to a provocation when the husband told the wife that he would bring his girlfriend to live in the same premises. A starting point of 2 years was adopted.

19.The Defence urged this court to take 2 years as the starting point.  I disagree.  In Un Sut Ha, there was a significant degree of provocation and the Defendant used a power twister.  In the present case, the Defendant used a chopper to attack the head of the brother.  There was no element of provocation.  The argument was over a trivial matter.

20.As to HKSAR v Lee Kin Wah, HCMA 990/2009, I found this case had very little reference value as compared to the present case, which is far more serious.

21.In mitigation, I am told that the Defendant acted out of impulse, but the chopper he used to attack his elder brother could turn into a lethal weapon, especially when he was in a rage.  Things could get out of hand and control.  His brother could suffer serious injury.  The attack was on the head; this was a vulnerable part of a human body.  It is fortunate that the brother did not suffer any permanent injury.  He was discharged on the same day after suturing was performed on his 5-cm wound.

22.I accept that there was no element of premeditation. The Defendant committed the offence in a spur of the moment.  There was no element of provocation either.

23.I consider that a starting point of 2 years 6 months is appropriate.  I allow one-third discount.  It comes down to 20 months.

24.As the Defence refer me to the case of HKSAR v Ho Pang, CACC 106/2001, that the Defendant, who was a handicap for being deaf and dumb, would definitely cause him tremendous difficulty during his period of incarceration, from the two psychiatric reports, it was also confirmed that the Defendant was required to use hearing aid on his left ear for hearing, as his right ear was totally deaf.  He had a deformed leg that he cannot walk properly.  The Defendant, however, can talk without problem. 

25.I therefore further allow 2 months’ reduction for his disabilities. 

26.His final sentence is 18 months’ imprisonment.