HKSAR v. Ng Wai Mun

DCCC 682/2017

[2018] HKDC 274

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 682 OF 2017

----------------------------

----------------------------

-----------------------------------------

REASONS FOR SENTENCE

-----------------------------------------

1.The defendant is charged with and convicted upon his own plea of one count of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212.

The facts

2.The defendant and Mr To Wing (PW1) were both tenants of the same public housing building.  On 13 January 2017, at around 8:27 am, PW1 saw the defendant mumbling when they were waiting for a lift in the ground floor lobby.  They then had a minor argument.

3.Later, PW1 went inside the lift.  The defendant pressed the button and prevented PW1 from going up.  PW1 told the defendant if he kept doing that he would strike him with a wooden rod.  The defendant kept pressing the button and swore at PW1.  PW1 then poked the defendant at his waist with a wooden rod. PW1 also came out of the lift and scolded the defendant.

4.The defendant then pushed PW1 into the lift, snatched the wooden rod and held PW1 onto the floor.  The defendant proceeded to strike PW1 at his head with the rod many times.

5.The CCTV of the lift captured what happened as described above and the security guard also saw the dispute between PW1 and the defendant at the ground floor lobby, and monitored what happened inside the lift via CCTV.

6.A civilian, Mr Lam, saw PW1 and the defendant walking out of the lift on the 29^th floor.  A report was made to the police.  Officers soon arrived.  The defendant was arrested.

7.Under caution, the defendant stated that PW1 used the rod to poke him, so he grabbed the rod to hit PW1 back.

8.In a subsequent cautioned interview, the defendant stated that:

(a) prior to the offence, he had finished 9 to 10 bottles of beer and was on his way home;

(b) at the lift lobby on the ground floor, he had a dispute with PW1, who used the wooden rod to poke him. They then fought into the lift;

(c) he grabbed PW1’s wooden rod to hit PW1; and

(d) the civilian Mr Lam stopped them when the lift arrived on the 29^th floor.

9.Both PW1 and the defendant were sent to hospital and treated respectively.  Their respective injuries were described in detail by medical terms in the summary of facts agreed by the defendant (see paragraphs 10 to 15).

10.In simple terms and in summary, the defendant had bruise and tenderness on his left hand as well as swelling on his left thumb.  There was mild tenderness on his left anterior chest wall.  X-ray examination showed a suspected small bony fragment on his left hand.  He was discharged from hospital on the same day.

11.On the other hand, PW1 was diagnosed to have head injury and right forearm pain.  There was a 3-cm laceration wound on his right forehead and a 1-cm laceration wound on his right index finger.  There was a complete loss of nail plate and laceration on the tip with undisplaced fracture of his right lower arm.  X-ray examination showed fracture of left index finger.  PW1 was discharged the next day and was given sick leave for about two months.

The defendant’s background

12.I have called for a background report and, together with the information supplied by the prosecution, I was told that the defendant is 59 years old, educated up to Form 3 in Hong Kong.  He was married in 1994 with two children, but had divorced in 2007.  His wife was granted custody of the children.  The defendant had been living alone in a public housing unit since 2011.  He used to be a factory worker, renovation worker, and since 2017 he had been working as a handyman for a painter, making about $4,500 a month.  He had also received monthly allowance of $1,245 under Comprehensive Social Security Assistance since 2009. 

13.He has five previous convictions entered under three different court proceedings between 1995 and 1997.  They were all trademark offences, for which the defendant was convicted for selling fake watches.  He was either fined or given suspended sentences for all those convictions.

Mitigation

14.What had been stated in the background report and supplied by the prosecution were accepted by the defendant.  It was submitted by the defence solicitor that the defendant did not know the victim at all.  The defendant was drunk at the time of the offence and he did not recall what he was murmuring at the time.  It was submitted on his behalf that he was provoked by PW1.

15.The defence has submitted a few cases, including some District Court decisions.  In summary, it was submitted that, for the current offence of “wounding 17”, several factors had to be considered for sentencing:

(1) there was no premeditation on the part of the defendant in this case;

(2) there was no motive on his part, as there were no previous dealings between the parties;

(3) the defendant’s mental state is irrelevant, as there was no evidence of any mental problem on his part;

(4) alcohol had contributed to the defendant’s actions, which were out of character;

(5) the defendant committed the offence alone;

(6) the weapon used in this case, namely a wooden rod, was not provided by the defendant but was provided by the victim;

(7) the level of force used was accepted to be out of proportion but not the most serious type;

(8) it is accepted that the victim had suffered certain injuries but was able to make a full recovery; and

(9) there was no evidence of any lasting effect of the fight on the victim.

16.The defence submitted that the defendant had no history of violence and he had never been jailed before. 

17.Initially, the defence asked the court to consider calling for a Community Service Order suitability report, but after discussion, the defence solicitor accepted that, according to her research, she had found no cases of “wounding 17” where a defendant was eventually disposed of by Community Service Order.

18.It was stressed that this was an isolated incident.  The defendant had no drinking problem.  He was simply acting out of character.  A compensation of $1,300 was offered.

19.Finally, the defence submitted a letter from a colleague Mr Lam who spoke favourably for the defendant and pleaded leniency for him.

20.Out of the cases submitted by the defence, particular reference was made to one of them.  It was HKSAR v Chow Benjamin, DCCC 650/2016, where that defendant was also convicted of “wounding 17”.  It was however a conviction after trial. 

21.In that case, the defendant and the victim had a dispute.  They were neighbours of the same public housing estate.  At the material time, the defendant, using a pocket knife which had been in his home, wounded the victim by stabbing and slashing him with the knife. 

22.The sentencing judge found that the defendant had been subject to long-term provocation by the behaviour of the victim and also provocation immediately before the incident took place.  The judge also took notice that the victim had made a full recovery.  Finally, the judge had considered that the defendant is an educated and intelligent man.  Although he has previous convictions in relation to violence, he has only been dealt with by way of financial penalty in the past.  The sentencing judge, after having taken into account all those factors, eventually passed a sentence of 15 months’ imprisonment.

Sentence

23.Wounding with intent is a serious offence which carries a maximum penalty of life imprisonment, sentencing of which is very much case specific and there is no sentencing tariff.

24.In Secretary for Justice v Hau Ping Chuen [2008] 3 HKC 398, the Court of Appeal was referred to an earlier judgment in HKSAR v Tse Hok Lam [2005] HKLRD 344, where the usual range of sentence for wounding was described as being 3 to 12 years’ imprisonment.  Of course, it is not to say that there may not be offences under section 17 which call for higher or lower sentences than the usual range described in Tse Hok Lam, if the circumstances are so unusual that they might merit sentences above or below the usual bracket (see paragraphs 15 to 16 of the judgment).

25.The same sentencing principle was reiterated in a more recent Court of Appeal decision in HKSAR v Wong Luk Sau, CACC 2/2012.  It was stated, in particular at paragraph 17 of the judgment, that “the range of 3 to 12 years is not a sentencing tariff, and the court is not obliged to impose 3 years’ imprisonment as the minimum term”.

26.As said, the defence solicitor submitted altogether five cases, including two District Court decisions, and I have considered all of them, in particular the one which I mentioned earlier, namely Chow Benjamin, which I believe is of most relevance to the current case.

27.Apparently, there are special circumstances in this case which amount to substantial mitigation. 

28.First, there was no doubt provocation by the victim, who caused the defendant to lose his head and commit this out of character offence.  It started off as a minor verbal dispute in the lift lobby.  Things escalated and it was the victim who first threatened the defendant with violence by saying to him that he would strike him with a wooden rod, which was brought along by the victim on his way home, as I was told.  Then the dispute continued and the victim put his words into action by poking the defendant at his waist with the wooden rod.  The victim kept scolding the defendant.  It was only at this juncture that the defendant erupted by pushing the victim, snatching the victim’s wooden rod, and proceeding to attack him.

29.I noted that the defendant also suffered certain injuries, though relatively minor when comparing to those of the victim.  That explains, as I was told by the prosecution, that the victim was also charged with and convicted upon his own plea of assault occasioning actual bodily harm, for which he was sentenced to 4 weeks’ imprisonment, suspended for 12 months.

30.Provocation in those circumstances is no doubt a powerful mitigation, as recognised in the aforementioned case, Chow Benjamin, submitted by the defence.

31.I also managed to find a Court of Appeal decision, R v Kwok Chi Ming, unreported, Criminal Appeal 202 of 1985, where the facts disclosed certain similarities to this case.  It was also a “wounding 17” case.  It arose from a lovers’ quarrel, which ended up badly.  Similar to what we have in this case, the female victim in Kwok Chi Ming assaulted the defendant first, and the defendant fought back and caused the victim injuries in an out-of-proportion manner.  That defendant, who was a dental assistant with a clear record, also suffered certain minor injuries.  The Court of Appeal eventually set aside the original sentence of 3 years and substituted one of 15 months only.  It was a sentence after trial.

32.Second, I have taken into account the weapon used and the injuries suffered by the victim in this case.  I viewed the wooden rod in court.  No doubt it is not as lethal as other weapons like knives or choppers, not to mention that it was initially brought along and used by the victim but not the defendant. 

33.I have also viewed the photographs showing the injuries of the victim. They were extensive but, in my view, not very serious.  This is evidenced by the fact that the victim was only hospitalised for a day.  More importantly, I was confirmed by the prosecution that the victim had recovered well and suffered no permanent injuries as a result.

34.Third, I have also considered the defendant’s background and his personal circumstances.  The defendant is already aged 59, but had never been involved in any violence.  Although he had committed some trademark offences, they were stale which took place nearly 20 years ago and he had never been imprisoned.  He worked to support himself, though partially relied on public assistance. 

35.It appears that he was drunk at the time of the offence.  That did not, of course, excuse him from committing this offence, but explained for his clearly out of character actions of violence.

36.I therefore accept, as reported by the probation officer, that the defendant is remorseful for his impulsive violent act.  I also accept that he committed this offence only because of his drunkenness and provocation by the victim.  He was acting alone all along and clearly without any premeditation, when the weapon used was taken from and first used by the victim.

37.In summary, this is an unusual case with special circumstances which, in my view, deserves a relatively lenient sentence for a serious offence like this. 

38.I understand that the other decided cases for “wounding 17” offence which do not lay down any sentencing tariff are of limited value for reference.  Nevertheless, I see the similarities between this case and Kwok Chi Ming as well as Chow Benjamin, in particular on the victim’s provocation and the defendant’s good background.

39.I am prepared to adopt the same starting point of 15 months’ imprisonment.  This is already the most lenient sentence I could pass for a serious offence like this.  The defendant should be given the full one-third discount for his timely plea.  The final sentence is one of 10 months’ imprisonment.