HKSAR v. Lam Kwong Chau

HCCC 197/2017

[2018] HKCFI 853

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 197 OF 2017

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REASONS FOR SENTENCE

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1.This is a case of domestic violence. The defendant one evening at the family home exploded into a fit of rage, violently attacking his wife and daughter, following a heated exchange between himself and his daughter with whom he had an acrimonious relationship. He has pleaded guilty to offences of wounding his wife and attempting to wound his daughter. This is his sentence.

2.The defendant at the time of the offence was 57 years old with a clear record.  He married his wife in Shenzhen in 1987 and they had a son and a daughter in 1988 and 1989 respectively.  The defendant’s wife and children lived in Shenzhen while he worked and lived in Hong Kong.  In January 2000, his wife and the two children settled in Hong Kong together with the defendant.  In 2010, the family moved into a public housing unit and a few years later the son moved out of the family home and took up residence elsewhere.

3.The incident giving rise to this offence took place on 5 October 2016.  At that time, the defendant and his wife together with the daughter lived in the public housing unit.  The wife was then 52 and the daughter was 27. 

4.After the incident, the wife divorced the defendant in October 2017. 

Anonymity order for wife and daughter

5.I have not named the wife or the daughter as they had been greatly traumatised by this incident and have suffered psychological harm to such an extent where they are unable to cope with the public attention that the case has received so far. 

6.It is well recognised that the Court can make an anonymity order as part of its inherent jurisdiction.[1]  The guiding question in the resolution of an application for an anonymity order is whether the interests and due administration of justice are shown to so require it.[2]  Although it needs to be borne in mind that of central importance is that justice must be done openly, and any qualification to that principle is only by appropriate measure and when the interests of justice so demand it.[3]

7.I have been provided with psychological reports in relation to the wife and the daughter which reveal that because of the trauma and emotional impact that the incident has had on them that they are in a particularly vulnerable state where their mental health would be at serious risk if further public focus was placed on them through their participation in these proceedings.  In the circumstances, I am satisfied that there is no counterbalancing public interest in the disclosure of information which would lead them to being identified.  I also noted that no objection was raised by the defendant to the application. 

8.I therefore make an anonymity order in relation to the wife and the daughter who will be referred to as X and Y respectively.

The incident giving rise to the offence

9.The relationship between the defendant and Y was extremely acrimonious and they would frequently argue with each other.

10.It appears the defendant was a strict disciplinarian and this impacted on his relationship with his children, particularly his daughter, and the family generally.  He was not averse to disciplining his children by beating them.  As a result, it seems that the daughter harboured a deep resentment towards her father to the point that they did not talk to or care for one another even though they lived under the same roof.

11.Sometime after 7 pm on 5 October 2016, the defendant and X had dinner at home.  He had consumed some wine with his meal. 

12.At around 8 pm, Y returned home after work and about an hour later used the bathroom to have a shower.  It was at this time that the defendant commenced scolding Y for occupying the bathroom and accused her of being ungrateful and swore at her. 

13.When Y came out of the bathroom, she and the defendant continued arguing with each other.  X joined the argument by siding with her daughter.  This agitated the defendant who shouted at X using foul language.  In response, Y swore at the defendant, saying “fuck your mother”. The defendant immediately dashed towards Y, whereupon she retreated into her bedroom using a treadmill to block the door.  She also made a report to the police.  She could hear her mother shouting “help” and “help my daughter”.  She was concerned about her mother. 

Wounding of X

14.The defendant kept kicking the door of Y’s bedroom, yelling and swearing at her.  X also swore at the defendant.  He then rushed into the kitchen and returned with a chopper in his hand.  He grabbed X and chopped her to the forehead, saying “Drop dead!  Chop you to death!”  She fell to the floor but the defendant again grabbed her and chopped her to the face.  He kept saying “chop you to death”.  He then held her face and tried to slash her neck with the chopper.  Even though she dodged the blow, it still resulted in wounds to her neck and chest.

15.As a result of this incident with X, the defendant has pleaded guilty to wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212, which is Count 2 on the indictment.

Attempted wounding of Y

16.The defendant then put the chopper on the floor and crawled outside onto the window sill of the living room and stood there for a short time.  He then crawled back into the flat. 

17.Meanwhile, X picked up the chopper and put it on top of the refrigerator in the kitchen.  As she came out of the kitchen, she saw the defendant repeatedly banging on the doorknob of Y’s bedroom with a hammer.  As a result of the force used, both the doorknob and the hammer broke.  He subsequently admitted that he intended to chop Y to death. 

18.As a result of this incident with Y, the defendant has pleaded guilty to attempting to wound with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212, and section 159G of the Crimes Ordinance, Cap 200, which is Count 4 on the indictment.

19.While the defendant was trying to break into Y’s bedroom, X rushed to the main door of the flat to seek help from the neighbours but the defendant attacked her again, pulling her hair and banging her head against the iron gate of the flat.  He then returned to the living room shouting abusive language.  A neighbour came to the flat who comforted X and told the defendant to calm down.

20.A report was made to the police, and at about 9:45 pm, a team of police officers arrived at the flat and found X covered in blood with knife wounds to her head.  The defendant was sitting outside on the window sill of the living room, saying that he was going to jump and kill himself.  The defendant eventually calmed down and came back into the flat. 

21.After the defendant was arrested and cautioned, he said “It was me who chopped her with a knife.  My wife deserved to be chopped.”

22.In a subsequent video recorded interview, the defendant explained that his relationship with his daughter was very poor and they did not talk to each other.  He acknowledged that in fact they hated each other.  He said that he argued with his daughter over the use of the bathroom. His daughter said to him “fuck you mother” and returned to her room which she locked.  He banged on the door with his hand and demanded that she come out. She told him that she would call the police if he did not stop.  He said his wife sided with his daughter, saying that the matter should be reported to the police.  He said he lost his temper and took the chopper from the kitchen intending to chop Y.  As it appeared that X was trying to protect the daughter, he used the chopper on her.  He said that he chopped her once or twice to the head.  Afterwards, he used the chopper to bang on the doorknob of his daughter’s bedroom in an effort to break it but was unsuccessful.  He therefore used a hammer to break the doorknob in order to open the door, but both the doorknob and the hammer broke.  He said that he wanted to jump from the window to kill himself but decided not to do so.  He said that he did not intend to chop his wife.  He said that he had a harmonious relationship with her.  He explained that that night his daughter had told him to eat shit and said “fuck you mother” and he blew up and wanted to chop her to death.  He also said that he wanted to break into his daughter’s room to chop her to death, so that they could die together. 

X’s condition

23.Later that evening on 5 October 2016, X was admitted to Tuen Mun Hospital where she was diagnosed as having sustained multiple lacerations to the scalp and face.  She suffered a 9 cm vertical laceration over the frontal scalp which was deep to the periosteum, a 3 cm left lateral eyebrow vertical laceration that was deep to the muscle, a 7 cm left cheek vertical laceration extending from the lateral canthus to the left cheek which was deep to the muscle, a 3 cm left chin vertical laceration that was deep to the muscle, a 5 cm right neck superficial laceration, and a 4 cm right chest wall superficial laceration.  A computed tomography of the brain showed left frontal epidural hematoma, fracture of left frontal bone, roof of the left orbit and superior orbital rim.  The lacerations were sutured and X remained in hospital until 13 October 2016. 

24.The incident left a psychological scar on X.  A psychological assessment in December 2016 revealed that she presented with features of acute stress disorder.  She reported that her mood was anxious and depressed.  She had fragmented sleep with nightmares, re-enacting the scene with her husband. She also lost her appetite.  She felt traumatised and fearful on recalling the incident.  She also had difficulty accepting her disfigurement resulting from the assault.  As a result, she would conceal her appearance and was fearful of staying home alone. 

25.A recent update of X’s physical and mental condition has revealed signs of improvement.  She subsequently reported occasional dizziness but was otherwise physically well.  She had cosmetic treatment to the scarring of her injuries.  She was diagnosed to suffer from adjustment disorder which is currently in remission and is receiving medication for her mood and sleeping problems.  

26.In a psychological report of April 2018, it was noted that she had shown improvement in her symptoms.  Her mood had improved with normal sleep and appetite, although she still felt anxious over the incident and her injuries, she was having no intrusive recollection or flashbacks, and was becoming more willing to socialise.

Y’s condition

27.Y has undergone a recent psychological assessment in March 2018.  She was diagnosed as suffering from post-traumatic stress disorder with apparent symptoms of intrusion and avoidance of reminders.  She reported symptoms of insomnia, flashbacks of the attack, nightmares, hypervigilance and somatic problems.  She felt depressed, agitated, lonely and anxious in facing the incident and the future. 

28.Y also expressed concern about the impact that the incident would have on her life and how she would be able to cope with it if it was publicly known that she was involved. 

History of the case

29.The defendant faced an indictment charged with attempted murder of X (Count 1), and in the alternative to Count 1 wounding with intent of X (Count 2), attempted murder of Y (Count 3), and in the alternative attempted wounding with intent of Y (Count 4). 

30.After a series of negotiations, on 19 June 2017, the defendant indicated in the Magistrate’s Court that he would plead guilty to Counts 2 and 4, but this was not acceptable to the prosecution even though they had added Count 4.  His case was committed for trial in the Court of First Instance. 

31.On 17 August 2017, his case was fixed for a case management hearing on 3 November 2017 and for trial on 14 March 2018. 

32.At the case management hearing, a pre-trial review was fixed for 2 March 2018.  Prior to the pre-trial review, by letter dated 15 February 2018, the prosecution indicated that it was considering a plea to certain counts on the indictment.  At the pre-trial review hearing, it was confirmed that the prosecution would accept guilty pleas to Counts 2 and 4 which had been previously offered by the defendant during the committal proceedings in the Magistrate’s Court.  Arrangements were then made for update reports as to the state and condition of the two victims, X and Y. 

33.On 14 March 2018, the defendant pleaded guilty to Counts 2 and 4 and not guilty to Counts 1 and 3.  The Court ordered that Counts 1 and 3 be left on the Court file and marked not to be proceeded without leave of the Court or the Court of Appeal.  Sentencing was adjourned to 20 April 2018 to obtain the update reports which had still not been supplied. 

Mitigation

34.Mr Shuan Kelly, for the defendant, made a submission in mitigation.  He referred to the defendant’s background who was born and brought up in mainland China and came to Hong Kong in 1975 when he was 17.  He explained that the defendant came from a traditional background and demanded respect and obedience, particularly from his children.  This created severe tension between himself and his daughter, particularly due to her poor school performance and rebellious nature.  He noted that their relationship had broken down completely and that Y refused to address the defendant as her father and for the last ten years they had not spoken to each other. 

35.Mr Kelly submitted that the incident arose because of Y occupying the bathroom which the defendant wanted to use at the time and swearing at him by telling him to “eat shit” and “fuck your mother”. This is not quite right and does not accord with the admitted facts which provide that the defendant scolded Y for occupying the bathroom and told her that she was ungrateful and that she could never wash away her sin.  The defendant continued arguing with Y after she left the bathroom with X siding with her.  With vulgar language, he shouted at X and it was then that the daughter when going to her bedroom told the defendant “fuck your mother”. There was obviously a heated exchange taking place between them. 

36.Mr Kelly submitted on behalf of the defendant that he is remorseful for what he has done and even though X has not yet forgiven him, she has attended prison to see him.  He further submitted that there was an element of provocation because of Y’s disrespect to her father and swearing at him that resulted in him losing control.  He finally submitted that the defendant stopped his violent behaviour, realising what he had done, and even contemplated taking his life when he went out onto the window ledge, and had to be coaxed back into the flat by the police.  He noted that this was not a premeditated or planned attack.  He also noted that the defendant has a clear record. 

37.Notwithstanding the able submissions in mitigation by Mr Kelly, it is acknowledged and accepted that the defendant had in the past disciplined his children with physical punishment and there were occasions when he displayed an angry and physical temper.  This is totally unacceptable behaviour and no doubt created a family environment that Mr Kelly described as being “toxic”. 

38.Even though X has made reasonable recovery from her injuries, on the information and material before me, she suffered considerably and both X and Y have been psychologically scarred by the incident.  Although, I will bear in mind that X has recently visited the defendant as a sign of forgiveness.

Sentencing

39.This was a violent and sustained attack by the defendant on his wife who he successfully assaulted, and on his daughter who fortunately for her was able to barricade herself in her bedroom and avoid being assaulted.  The ill feeling between the defendant and Y had nothing to do with X and yet in an effort to try and protect her daughter, X was the object of the defendant’s rage.  X sustained serious chop wounds to her head, neck and chest.  Y was fortunate to avoid being assaulted by the defendant and had he been able to get to her, the consequences of this incident could have been far more serious. 

40.The aggravating features in this case were that the defendant used a weapon, a 32 cm long chopper, that the attack was against two defenceless women, that it took place in a small and confined flat where egress from the flat would have been difficult, if not impossible, for X and Y, that the attack was sustained and persistent, and that it resulted in injuries to X in the form of serious physical injuries and psychological harm and to Y in the form of psychological harm.  The attack on X was particularly vicious and could have resulted in far more serious injuries to her, if not her death.

41.There is no sentencing tariff for offences in relation to wounding with intent.  A range has been suggested from 3 to 12 years’ imprisonment but it has been emphasised that this will very much depend on the particular facts and circumstances of the case.  See HKSAR v Yuen Wai Kui, CACC 280/2004, 28 April 2005, unreported, at paragraph 21.  See also the guidance provided when sentencing for the offence of wounding with intent in HKSAR v Chan Chun Tat [2013] 6 HKC 225.  I consider the gravity of the offence to be very serious, given that a weapon was used in a domestic situation against two defenceless women in a sustained episode of violence.  

42.As to Count 2, I will adopt a starting point of 8 years and 6 months’ imprisonment which I will reduce by one-third for the defendant’s guilty plea to 5 years and 8 months’ imprisonment. 

43.As to Count 4, I will adopt a starting point of 5 years’ imprisonment which I will reduce by one-third for the defendant’s guilty plea to 3 years and 4 months’ imprisonment. 

44.Taking into account the totality principle and bearing in mind that the two offences arose out of the one incident, I order that the sentence on Count 4 run concurrently with the sentence on Count 2. The defendant is accordingly sentenced to 5 years and 8 months’ imprisonment.

Mr Derek Lai, SADPP, and Mr Charles Lee, SPP, of Department of Justice, for HKSAR

Mr Shuan Kelly, instructed by Alvin Cheng & Rosaline Choy, assigned by Director of Legal Aid, for the defendant