HKSAR v. Tanachattarakul Napak

DCCC 1094/2017

[2018] HKDC 1077

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1094 OF 2017

____________

____________

REASONS FOR SENTENCE

1.The defendant stands convicted after trial of one charge of causing grievous bodily harm to Kham Nan Kyaing with intent to do her grievous bodily harm, contrary to section 17(a) of the Offences against the Person Ordinance[1].

2.Full particulars of the offence are set out in my verdict delivered on 2 August 2018.  In summary in September 2017 the defendant and Ms Kham (“the complainant”) resided in different bedrooms of Room 131A on the 9th floor of Koon Mei Building, 127-131 Lockhart Road in Wanchai (“the flat”). 

3.In the early hours of 21 September 2017 the complainant woke up to go to the toilet.  The complainant noticed the defendant was in the kitchen cooking French fries.

4.After going to the toilet the complainant walked back to her bedroom.  As the complainant was about to enter her bedroom she heard the defendant call her name.  The complainant turned round.  The defendant said “I am going to make you die” and threw an old rice cooker pot (identified as the inner pot of a rice cooker, exhibit P6) containing hot oil, all over the complainant. 

5.After splashing the hot oil on the complainant the defendant ran into the kitchen and grabbed a knife (exhibit P8).  When the complainant tried to push the defendant away with her arms her left elbow was cut by the knife. 

6.The defendant then grabbed the complainant’s hair and dragged the complainant into the complainant’s bedroom where she pushed the complainant on the ground and continued to hit the complainant with her knees.  When the complainant pleaded to be taken to the hospital the defendant said “I make you die today”.

7.The defendant then went into her room, grabbed her shoulder bag and left the flat. The complainant tried to stop the defendant from leaving but because of her injuries the defendant easily pushed her away. 

8.The complainant picked up her phone and ran after the defendant, calling the police on the way.  The complainant did not see the defendant again. 

9.After the police arrived the complainant was first taken to the Accident & Emergency Department of the Ruttonjee Hospital and later the same day transferred to the Surgical Ward of the Queen Mary Hospital.  On 26 September the complainant was transferred to the Tung Wah Hospital to continue wound management.

10.At 6:10 p.m. on 22 September WPC 4679 was on duty at the Airport Police Station when she received a message to go to the Immigration Duty Officer’s Office on the 7th Floor of Terminal 1, Departure North, which was in the restricted area of the airport, to take over custody of the defendant who had been stopped trying to leave Hong Kong for Bangkok. 

Mitigation

11.In passing sentence, I take into account everything said on behalf of the defendant by Mr Tse, including that the defendant, a divorced lady aged 48, came to Hong Kong from Thailand in 2014 to work as a domestic helper to support her family consisting of her mother aged 80, two daughters aged 23 and 30 and one son aged 22, who is still a student; this is the first time that the defendant has committed an offence in Hong Kong and that she is unlikely to reoffend.  The defendant asks to return to Thailand as soon as possible because she is missing her family very much.

12.Before passing sentence I called for a psychological report to know more about the defendant.  In summary the report prepared by Jessica K.P. Chan, Clinical Psychologist, reveals that the defendant started work in Thailand at the age of 12.   The defendant married when she was 20 and divorced shortly after the birth of her son.  The defendant brought up the three children with whom she has a good relationship.  Due to financial stress the defendant came to Hong Kong in 2014. 

13.The defendant told the clinical psychologist that on the day of the offence after drinking two glasses of wine she was cooking in the kitchen.  She felt angry because the victim had scolded her for many days.  This recalled her bad experiences and feelings from her marriage.  When the victim continued cursing her the defendant out of rage threw the hot oil on the victim.  I note this account is different to the defence put forward at trial that what happened was an accident.

14.The clinical psychologist says that the defendant appeared to show some superficial remorse.  The clinical psychologist is of the view that the offence is likely to be related to her momentary impulse on managing her mood when being provoked; her weak consequential thinking and that alcohol may have also slightly loosened her impulse control.      

15.The clinical psychologist is of the opinion that there is no strong evidence indicating a habitual use of violence to settle her daily conflicts and that the risk of reoffending is low.  Psychological treatment is not recommended although the defendant may benefit from counselling on enhancing her consequential thinking and mood management. 

Starting point

16.There are no guidelines for offences of wounding with intent or causing grievous bodily harm.  In HKSAR v Hau Ping Chuen the Court of Appeal referred to the usual range of sentence for wounding with intent being described as 3-12 years[2]. The Court of Appeal noting that there were a host of wounding with intent decisions which might be used in favour of a lenient view whereas others favour a stricter view said that:

“At the end of the day, a sentencing court obtains a ‘feel’ for the appropriate result by regard to the attitude of courts over a period of time to a great variety of circumstances.”

17.In HKSAR v Chan Chun Tat the court listed a number of relevant factors to be considered in determining the gravity of the offence and the culpability of the offender, including the extent to which the assault was premeditated; the reasons or motivation underlying the assault upon the victim; the mental or emotional state of the assailant at the time of the assault; whether alcohol or drugs contributed to the actions of the assailant; whether the assault was committed by the assailant alone or as part of a group; the type of weapons employed; the level of force or aggression and the persistence with which the assault was pressed home; the injuries caused to the victim and the effect of the assault upon the victim and those close to him or her[3].

Injuries

18.The complainant suffered burns to 10% of her body including her face and eyes; arms and abdomen and a one cm laceration on her left elbow as particularised in the medical reports from the Ruttonjee Hospital and the Tung Wah Hospital (exhibits P3 & P4).  Photographs of the injuries (exhibit P1 (c)), taken eight days after the attack, were produced at trial

19.Dr Ko, who also prepared a medical report of the injuries (exhibit P5) but did not herself examine the complainant, gave expert evidence on the medical injuries. Dr Ko explained that 10% of the complainant’s body surface was burnt and that the outer skin and part of the inner skin were burnt.  Dr Ko described this as ‘partial thickness’ and explained that was the same as second degree burns used in the medical report from the Ruttonjee Hospital.   

20.Dr Ko also explained that no corneal involvement meant that the outer layer of the eyeball was not injured and therefore according to the ophthalmologist the complainant’s eyesight was not adversely affected. 

21.The burns were managed conservatively with dressing, which Dr Ko explained meant the burns were allowed to heal by themselves without the need for surgery. 

22.The complainant told the court that scars remained on all the areas of her body where the oil landed and that the biggest scar was on her right chest as shown in photograph 30, exhibit P1 (c).  The complainant explained that this scar was more severe because this was where the defendant used her knee to hit her.  The complainant showed the court the scar remaining on her right shoulder and confirmed that photograph 27, exhibit P1 (c) showed the injury to her left elbow which was caused by the knife and which was treated by stitching.

23.The photographs of the injuries produced at trial (exhibit P1 (c)) show just how traumatic and frightening the attack must have been for the complainant with sensitive parts of her body burnt.  Before passing sentence I therefore requested for update photographs of the injuries showing the scars together with a victim impact statement. 

24.The update photographs show that while the burns have healed the face is still red (compare photographs 1-5, exhibit P1(c) with update photographs 1-2) and scars remain, in particular on the upper left arm (compare photographs 8-10, exhibit P1(c) with update photograph 3); the left shoulder (compare photographs 21-22, exhibit P1(c) with update photograph 5); the left side of the  body (compare photographs 15-16, exhibit P1(c) with update photograph 7); and the right chest (compare photographs 6-7, 17-18 & 29-30, exhibit P1(c) with update photograph 11).

25.Although the court has not called for update medical reports as to whether any of the scars will be permanent, it is quite clear from the photographs, in particular the scarring to the left arm and the right chest, these will be long term.

Victim impact statement

26.The victim impact statement reveals that the complainant has been tremendously affected by the incident.[4]. The complainant has become nervous and frightened and does not sleep well.  The daily life of the complainant has been affected resulting in headaches and deterioration in memory.  The complainant is also embarrassed by the scarring and wears long sleeve clothing to conceal the scarring.  When eating spicy food, the scars turn very red and become itchy and sting.     

Sentence

27.Taking into account the circumstances of the attack; the injuries sustained by the complainant; the emotional trauma suffered by the complainant; the offence was not premeditated and that the defendant, who has a clear record in Hong Kong, is unlikely to reoffend, I am satisfied that the proper sentence after trial is 3 years and 6 months’ imprisonment.