HKSAR v. Leung Chiu Kuen

DCCC 1085/2017

[2018] HKDC 467

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1085 OF 2017

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of wounding with intent[1].

Summary of facts

2.Mr Lam, the victim, borrowed $110 from the defendant in late September 2017.

3.At around 6pm on 2 October, while the victim was chatting with a friend outside the methadone clinic in Tai Wai, the defendant approached him and reminded him about the debt.

4.The victim had, apparently, forgotten that he still owed the defendant $90 and they had a dispute over money, pushing each other in the process. The defendant told the victim to watch out and then left.

5.The defendant returned about 30 seconds later with his hands behind his back. When he got closer to the victim, the defendant took out a knife that was inside the bag that he was hiding behind his back. The knife was about 1 foot long with an 8.5 inch blade.

6.Mr Lam backed away but the defendant struck him with the knife 6 to 7 times. Mr Lam managed to shield himself with his bag but was still slashed a few times.

7.As a result of the attack, Mr Lam suffered a 15cm U-shaped laceration and other wounds over his right forearm; a 5cm superficial laceration over his right shoulder and a 6cm laceration over his left shoulder. He was hospitalized for 5 days.

8.The defendant threw the knife away after the attack. He was intercepted at scene and arrested.

9.The defendant admitted under caution that he slashed Mr Lam because of the outstanding debt. He saw a knife covered by the bag in a grass planter nearby and so he picked them up and continued to argue with Mr Lam. He did not think it would become so serious.

10.Mr Lam has fully recovered from his injuries since the attack.

Previous convictions

11.The defendant has 9 previous convictions. 5 were for the possession of dangerous drugs, 2 for loitering and one for resisting arrest. None involved violence.

12.The defendant’s last conviction was almost 15 years ago.

Mitigation

13.The defendant was born in Hong Kong and will be 57 in a few weeks’ time. He is single and lives with his elderly mother. He was educated up to secondary 1 level.

14.The defendant suffers from some form of vascular disease. He is a drug dependent and has been receiving methadone treatment since 1983.

15.The defendant worked as a renovation worker until 2008 when his left hand became crippled and had to rely on disability allowance. The defendant has not been able to find work and is reliant on social welfare assistance.

16.The defendant is the fourth of 5 siblings. Two of them had passed away, leaving the defendant as the only son. The defendant’s mother relies on the defendant to look after her.

17.According to the defendant’s family, he is not a violent person. Letters from his mother, sister and District Counsellor were submitted.

18.I was informed that the defendant has been receiving psychiatric treatment and counsel suggested to call for psychiatrists’ reports to update the court on his situation. The relevant parts of the report are referred to below.

19.Mr Lam for the defendant told the court that the defendant was angry at the time of the offence because he had always been bullied by the victim. In fact, the victim had bullied the defendant into lending him the money in question in the first place.

20.The victim had also beaten up the defendant when he asked for repayment. That was why, when the defendant saw the knife in the planter, he picked it up and out of momentary anger used it to attack the victim.

21.The defendant knows what he did was wrong. He has been cooperating with the Police ever since his arrest. He pleaded guilty to the charge. He is remorseful.

Sentence considerations

22.The maximum sentence for wounding with intent is imprisonment for life.

23.Mr Lam relies on 4 recent District Court cases to suggest that in cases of wounding committed out of character and of momentary anger, without premeditation or similar convictions, which might have been affected by the offender’s mental state, a proper starting point should be no more than 3 years’ imprisonment.

HKSARv Wong Kam Chu

24.In the case of HKSAR v Wong Kam Chu [2016] HKCU 2543, the defendant was convicted after trial of one charge of wounding with intent. There the defendant and the victim were neighbours who had had some minor arguments. On the day of the wounding, the victim poured some water underneath the defendant’s iron gate, causing the defendant to lose his temper and used a chopper to chop on the victim’s shoulder and forearm. The victim tried to escape but the defendant gave chase and continued to chop him on his head, neck and ear. The victim begged the defendant to stop and the defendant did stop. The victim was hospitalized for 2 days.

25.The victim suffered the following injuries. Loss of a 3cm x 1cm sized skin and a 10cm laceration on forehead, loss of small sized cartilage of right ear; an 8cm x 2cm laceration at right back of neck that reached the muscle layer; a 5cm laceration in the left triceps causing a large area to be cut open; 5cm long laceration on left forearm that reached down to the muscle layer and severing 50% of one muscle; and bone fracture to the right forehead without intra-cranial bleeding. The victim was hospitalized for 2 days, but had to receive plastic surgery.

26.There the defendant had a clear record. He was 66, married with a 20 year old daughter. He used to be a renovation worker before his retirement.

27.The judge referred to the cases of HKSAR v Tse Hok Lam [2005] HKLRD 344, which was considered in the case of Secretary for Justice v Hau Ping Chuen [2008] 4 HKLRD 673, and stated that the usual sentence for an offender of full age would be 3 to 12 years’ imprisonment.

28.The judge took into consideration that the defendant and the victim had not been on good terms all along as neighbours, and that there was no premeditation on the defendant’s part since he committed the offence out of impulse when he lost control of his emotions and adopted a starting point of 4 years’ imprisonment.

29.A reduction of 4 months was granted having regard to the defendant’s age and his clear record.

30.The judge granted a further 2-month discount on the basis that there was a degree of provocation on the part of the victim which led to the defendant losing control.

HKSARv Wu Kwok Wai

31.In the case of HKSAR v Wu Kwok Wai [2017] HKCU 2942, the defendant pleaded guilty to one charge of wounding with intent.

32.There the defendant chopped his cohabiting girlfriend multiple times in the head and hands with a chopper. The attack was unprovoked and it was later found to likely have been brought about by the defendant’s drug-induced psychosis, which caused the defendant to be hearing voices telling him to harm the victim.

33.The girlfriend suffered the following injuries. Cut wounds over left shoulder, right chest and right shin; 3 cut wounds over scalp; deep cuts over both hands; fractures across wrist bones and finger bones over both hands; and wounds at left ear pinna and right knee.

34.The judge adopted a starting point of 3 years’ imprisonment. After granting the defendant a one-third discount for his guilty plea, the judge further reduced the sentence by 8 months to “reflect diminished culpability for his consumption of drug leading to his commission of the offence”.

35.The application of the 8-month discount was made after reference to the case of HKSAR v Chiu Peng, Richard [2002] 1 HKLRD 185, CACC 287/2001. There the applicant pleaded guilty to one charge of theft of $16 million.

36.Medical opinion was that the applicant suffered from a mood disorder characterised as "Bipolar II disorder" and that at the time of the offence the applicant was in a major depressive episode.

37.The Court of Appeal accepted that as a result of his mental condition, “the applicant was confused, indecisive and credulous. His reasoning was muddled and he was highly susceptible to persuasion by others. However, he knew what was going on was seriously wrong and he must have appreciated that when he agreed to take part of the loot he was committing a serious crime”.

38.The Court found that the 6-month discount given on this basis was not inadequate or inappropriate.

HKSAR v Yip Wai Tong

39.In the case of HKSAR v Yip Wai Tong [2017] HKCU 3159, the defendant pleaded guilty to one charge of criminal intimidation and one of wounding with intent.

40.The defendant and the victim were upstairs downstairs neighbours. There has been a history of complaints issued by the victim about noise coming from the defendant’s upstairs flat. They were on poor terms.

41.On the day of the wounding, the victim was attacked by the defendant in the morning when he was closing the iron gate of his unit. The defendant had an axe in his left hand and a chopper in his right. He chopped the victim’s head with the chopper and told him to die. The victim ran and screamed for help while the defendant gave chase and chopped him from behind. There was a struggle. Other people heard the commotion and came to assist the victim.

42.The victim suffered the following injuries. An 11cm laceration on scalp of left forehead; 5cm on left parietal region; 7cm on the posterior midline; and lacerations on the left angle of jaw and left hand.  The judge heard that as at the time of sentencing, the victim still complained of disturbed sleep, anxiety, and headaches.

43.There the defendant was 66 years old with one previous conviction for wounding under s.19, which was committed against the same victim.

44.Psychological and psychiatric reports indicated that the defendant did not suffer from mental disorder but would benefit from psychological service for anger management. The defendant’s background report said that he showed deep remorse, that he realized that he had been foolish and impulsive.

45.The judge pointed out that the usual range of sentence is a starting point of between 3 to 12 years’ imprisonment for a person of clear record who pleaded guilty.

46.Given the nature of the injuries suffered and the way the attack was carried out, the judge adopted a starting point of 4 and half years’ imprisonment, enhancing it by 3 months for the attack being a second one on the same victim. The sentence after plea was 38 months’ imprisonment.

HKSARv Chan Ming Hung

47.In the case of HKSAR v Chan Ming Hung [2018] HKCU 127, the defendant pleaded guilty to a similar charge. There the defendant had an argument with the owner of a newspaper stall who refused to sell him beer. About 3 hours later, the defendant grabbed a 12-inch knife from the kitchen of a nearby restaurant, wrapped a towel around it, and went back to the stall to attack the owner, causing her right thumb tip to suffer a 1cm wound. The defendant left after the attack.

48.The defendant had 6 previous convictions with 3 being related to violence and 2 for possession of an offensive weapon. It was put forward in mitigation that the defendant had had a total of 18 cans of beer before the attack and that he was under the influence of alcohol when he committed the offence.

49.The judge referred to the case of HKSAR v Chan Chun Tat, CACC 317/2012 and observed that the usual sentence for wounding with intent is that of 3 to 12 years’ imprisonment.

50.The Court of Appeal in Chan Chun Tat, at paragraphs 49 and 50, identified some major sentencing considerations for an offence of wounding with intent.

51.These considerations were later referred to in the case of HKSAR v Ma Dick Lun, CACC 112/2013 and were listed out by the judge as follows. The extent of premeditation, motive behind the attack, the mental or emotional state of the assailant, whether under the influence of drug or alcohol, whether the attack was carried out by a single person or with others, the nature of the weapon used, the level of violence, the injuries suffered by the victim and the effect the attack had on the victim and those close to him or her.

52.In addition to the said sentencing considerations, the Court of Appeal in Ma Dick Lun referred to the case of HKSAR v Chui Kwok Ming, CACC 380/2013 and identified the following aggravating factors for this type of wounding case[2]: the defendant as the principal offender; the assault was committed in company; unprovoked; in a public place; the assault continued even after the victim had fallen; or after the victim became unable to self-defend; serious and lasting injuries; and the assailant misleading the Police subsequently, indicating a lack of remorse.

53.Applying the said cases, the District Judge found that there was a low level of premeditation, the motive was for revenge, the nature of the weapon used was potentially lethal, the attack was unprovoked and in a public place. The judge also found that the defendant was under the influence of alcohol and that there was a low level of violence, that the injuries suffered by the victim were minor.

54.A starting point of 4 years’ imprisonment was adopted, discounted to 32 months’ imprisonment after plea.

The present case

55.I turn now to the present case.

56.I was told by Mr Lam for the defendant during mitigation that the defendant had been receiving psychiatric treatment. Two psychiatric reports were ordered to be prepared on the defendant.

57.According to the reports, the defendant had taken 60 units of methadone, 2 tablets of heroin and 2 tablets of dormicum (contains midazolam as active substance, for treating insomnia) about 2 hours before his commission of the present offence.

58.It is the opinion of the psychiatrists that the defendant suffers from mental and behavioural disorder due to use of multiple substances. While in-patient treatment is not required, it is recommended that he continues with out-patient psychiatric treatment.

Matters considered

59.The defendant had acted alone and on impulse.

60.It was put forward in mitigation that the defendant found the knife in the grass planter nearby. There is no evidence to suggest that the defendant had brought the knife with him to the scene of the attack, thus no evidence to suggest that the attack was premeditated. The defendant is sentenced on this basis.

61.The defendant’s conviction record does reflect that this attack might be committed out of character. There has been no convictions related to violence. Given the fact that the last conviction was some 15 years ago, I find that there is no need to enhance the sentence on the basis of him being a habitual offender.

62.The defendant was, to a certain extent, provoked if we accept that he himself had been punched by the victim a few times shortly before the assault.

63.The assault was with a one foot long knife and the defendant had slashed the victim 6 to 7 times. Having said that, the level of violence involved cannot be said to be of the most serious kind.

64.As mentioned above, the victim has since recovered fully and has suffered no permanent damage.

65.Just one of the aggravating features identified by the Court of Appeal in Ma Dick Lun is present, which is that the attack was carried out in a public place.

Starting point

66.Having taken into consideration all the circumstances, I find that the seriousness of the present case can properly be regarded as at the lower end of the spectrum.

67.I find that a proper starting point is that of 3 years’ imprisonment.

68.Despite the defendant claiming that he was not under any psychotic influence, given the fact that the defendant had taken methadone, heroin and dormicum within 2 hours of the offence, and the psychiatrists’ diagnoses that he suffered from some mental and behavioural disorder, I find that I should reduce this starting point by 3 months to 33 months’ imprisonment in recognition of the likelihood that the defendant was under the influence of the substances when he committed the offence.

69.The defendant had entered a timely plea and is to be granted the full one-third discount.

70.The defendant is, therefore, sentenced to 22 months’ imprisonment.