HKSAR v. Tsang Kwong Shing

DCCC 1/2018

[2018] HKDC 764

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1 OF 2018

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REASONS FOR SENTENCE

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1.This is a case of domestic violence. The husband (64) hit his wife (55) with a hammer on the head causing a scalp laceration which required 3 stitches.

2.The defendant pleaded guilty to one count of wounding with intent, contrary to s 17 of the Offences against the Person Ordinance.

3.The defendant lived with his wife, children and grandchildren in a public housing unit in Tin Shui Wai. Sometime after mid-night on 21 October 2017, everybody had gone to bed by that time, the wife was woken up by the noises from the sitting room - the sound of someone opening a drawer. It was the defendant who got up to go to toilet and then opened the drawer.

4.The wife, who did not share the same room with the defendant, went out to have a look, and saw the defendant holding a hammer in his hand walking back to his room. The wife followed behind asking him what he was doing with it; without a word, the defendant suddenly turned around and hit on the head of his wife once with the hammer. That attack woke everybody up and the police were notified.

5.The wife was sent to hospital where she received 3 stitches for her injuries to the head and was discharged afterwards. The defendant was arrested but he remained silent throughout the police investigation.

6.The court adjourned the case to call for two psychiatrist reports on the defendant and a victim impact report on the wife.

7.Dr. Lui writes his opinion as follows:-

“While the defendant is suffering from vascular dementia his memory and thinking are largely preserved and his current mental condition stable. There is no indication of a hospital order though placement in a supervised hostel is advisable.”

8.In describing the defendant’s psychiatric history, Dr. Chan writes:-

“The defendant was first known to the psychiatric service in 2016 when he attacked his wife with a walking stick out of morbid jealousy, that he accused her of having extramarital affairs. He was admitted to the Castle Peak hospital for treatment and was diagnosed as having vascular dementia. Whilst all along being a quick-tempered person with history of domestic violence towards his wife, he was noted to have cognitive decline, irritability and paranoid ideas during the period of hospitalisation……”

9.Dr. Chan goes on to conclude that the defendant’s current condition is stable and he does not require any in-patient psychiatric treatment. In the long run, he would need a supervised accommodation given the grossly irreversible nature of his dementia.

10.In the victim impact report, Miss Tso, the clinical psychologist, writes the following in the concluding paragraph:-

“…… The assessment results indicate that she has no negative feelings towards her husband’s assaultive behaviour. On the contrary, she blames herself for not providing adequate care and concern to her husband. In general, she can manage her daily functioning. No significant traumatized symptoms or symptom of any mental disorder is displayed. The data gathered from the client’s response, clinical impression and informant’s report suggest that the offence has not evoked significant psychological disturbance on the client. As psychopathology is not indicated, she is not in need of psychological treatment.”

11.The defendant, a 64-year-old man, who in fact had never had any trouble with the law before; this is his first offence and without doubt a serious one.

12.The court heard that the defendant is a bad-tempered person with a very suspicious mind, although the couple have been married over 30 years with 4 grown-up children, the defendant often had the thought, probably imaginary, that his wife had another man back in the mainland.

13.It was this suspicion which caused him to hurt his wife physically one day in 2016 by hitting her with a walking stick. As a result, he was sent to the Castle Peak hospital for examination and found out he was suffering from vascular dementia.

14.As to the event leading up to the present offence, counsel said it was to do with the refusal by the wife to have sex with the defendant earlier in the day.

15.I am no expert on marital affairs, but my advice to the defendant is that should they encounter any more problems in the future, never ever use violence because there is always a price, sometimes a heavy price, to pay, and in any event, violence is no solution at all.

16.The charge to which the defendant pleaded guilty is the most serious crimes of violence (non-fatal) in our law, which carries a maximum of life sentence. However, there are no tariffs as such for this type of offence because of the myriad circumstances under which the offence can be committed. That said, the usual range for consideration is one of 3 to 12 years.

17.Hitting someone with a weapon is a serious matter, it almost always calls for a custodial sentence as a deterrent. Without downplaying the seriousness of what the defendant had done to this wife, however, there exist circumstances in his favour, which may justify the adoption of a lower than usual starting point, in the case such as:-

(a)	-	No evidence to suggest that it was a premeditated attack;
(b)	-	Not the worst type of violence used;
(c)	-	The attack did not last long – only one blow on the head;
(d)	-	Blunt as opposed to sharp weapon was used;
(e)	-	The wife seemed to have a speedy recovery without any permanent disability.

18.Because of his dementia problem, counsel said that arrangement has been made for the defendant to go to a nursing home after his release from custody. I am not sure if that is the best option for the defendant, but at least the chances of further violence towards the wife may be reduced to a minimum.

19.For the reasons given above, I adopt 12 months as the starting point and reduce it to 8 months for his plea. As there being no reason for further reduction, the defendant is therefore sentenced to 8 months’ imprisonment.