HKSAR v. Lu Tiantian

DCCC 100/2018

[2018] HKDC 1253

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 100 OF 2018

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REASONS FOR SENTENCE

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1.Defendant is convicted on his own plea to a charge of attempted wounding 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. 

Agreed facts

2.According to the Agreed Facts, on 16 October 2017, PW1 parked his car outside AXA Centre, 151-159 Gloucester Road, Wan Chai.  At 1330 hours, his colleague saw a male lingering around the car, and informed PW1.  The male was the defendant.  At 1400 hours, PW1 and two colleagues went out for lunch and saw the defendant standing beside the car.  PW1 then approached the defendant and told him to go away.  The defendant left. 

3.Later on the same day, around 1615 hours, PW1 and the two colleagues went to the car.  When PW1 was opening the driver door of the car, the defendant went up to the car and tried to open the passenger door on the car’s left.  PW1 shouted at the defendant.  The defendant fled.  PW1 and two colleagues chased.

4.At the juncture of Tonnochy Road and Gloucester Road, the defendant suddenly turned around and stabbed a fruit knife (handle 10-cm long and blade 12-cm long) towards left abdomen of PW1.  PW1’s shirt suffered a 0.5-cm cut and PW1’s left abdomen suffered 1.5-cm line of redness.  Defendant immediately threw away the fruit knife on the ground and sat on the ground.  The case was reported to police.

5.Defendant was later arrested.  Upon search of the defendant, a pair of gloves worn by the defendant and the packaging of the fruit knife are found in the right trousers pocket of the defendant.  The fruit knife used in the assault was also found on the ground outside 160 Gloucester Road. 

6.Under caution, defendant admitted that he had been scolded by PW1 and out of anger he bought the knife to scare PW1.

7.During a cautioned interview, with the assistance of Putonghua interpreter, defendant admitted, inter alia, the following that: 

(i) He arrived Hong Kong on 15^th October;

(ii) He went to Wan Chai on the 17^th October;

(iii) He stayed at 151 Gloucester Road for a rest and found the car very attractive;

(iv) However, victim came and warned him off; he became angry with the victim, i.e. PW1;

(v) Defendant went to Hennessey Road to look for a knife with intent to stab the victim;

(vi) He bought one from a shop named Yee Lee;

(vii) He wore gloves which he brought from mainland at the material time in order to prevent himself from being hurt by the knife.

(viii) After buying the knife, he waited for the victim at the car;

(ix) When the victim approached the car and opened the door, defendant tried to open the passenger door at the back but he failed;

(x) Victim saw defendant’s act of trying to open the passenger door and so defendant fled.

(xi) At a junction, defendant used knife to stab the victim but victim pushed defendant away, then victim’s friends also arrived at the scene and defendant sat on the floor and threw the knife to the side, soon after, police arrived;

(xii) Defendant did not know the victim before the incident.

8.CCTV footage was seized from the ground floor of AXA Centre which showed, inter alia, that at 1645 hours on the same day, victim went to ground floor of AXA Centre and then defendant stood up and approached the car. 

Criminal record

9.Defendant has a clear record in Hong Kong. 

Mitigation

10.Defendant is a visitor from the mainland.

11.He is aged 24 and he used to be a peasant but he later worked as a factory worker before he came to Hong Kong as a visitor.

12.He has received education up to Form 3 level.

13.It is submitted by Mr Lee, counsel for the defendant, that the defendant has pleaded guilty at the earliest opportunity and had cooperated with the police. 

14.It is said further that the actual injury inflicted on the victim, i.e. PW1, is very mild and that the defendant only attacked PW1 once.  Further, defendant possibly had committed the present offence under the influence of his mental illness, as his act was not rational. 

15.Mr Lee urged this court to afford one-third sentencing discount to defendant should the court impose a sentence of imprisonment on the defendant.

Discussion

16.Firstly, in relation to sentencing of this offence, there is no sentencing guideline set by the Court of Appeal.  Sentencing in each case would depend heavily on the particular facts of a particular case[1].

17.Factors to be considered by the court would include the background to the commission of the offence, the motive for the commission of the offence, the injury to the victim and the nature of the weapon used.  Usual sentence lies between 3 to 12 years[2].

18.In this case, the defendant has a clear record.

19.It is said in the case of HKSAR v Chan Chun Tat CACC 317/2012 that:-

“46. The reason that offences contrary to section 17 are serious is because they are committed with the intention of inflicting grievous bodily harm on the victim.

47. It is hardly surprising, therefore, that the offence is regarded as such a serious one. Indeed, the fact that the usual range of sentence is 3 to 12 years’ imprisonment reflects that very seriousness. For this range indicates that not only will imprisonment usually be the norm but also that the minimum period of imprisonment will usually be 3 years.

48. Thus in determining the gravity of the offence, the factor of primary importance is the intent of the assailant to cause the victim really serious bodily harm. Whether that intent was fully realised in the injuries sought to be inflicted has been said to be of ‘secondary significance’[3]…That is why, even though the consequences to the victim will always be an important factor, the gravity of the offence lies in the deliberate resort to violence with the intent by the offender to inflict by such violence really serious harm on the victim.

49. Consequently, many of the factors to which a court will have regard in determining the gravity of a section 17 offence and the culpability of the offender will relate to the type of harm intended to be inflicted, the means by which that harm was inflicted and the circumstances generally surrounding the assault. Thus, without attempting to exhaustively identity all the relevant factors, the usual ones will be 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.

50.In arriving at an appropriate sentence the court will have regard not just to the need to punish the offender for his conduct, but also to the sentencing principles of deterrence, both general and individual, and, in appropriate cases, the need to denounce the resort to violence...”

20.The defendant presently is convicted of the attempt charge and the injuries to the victim is minimal and there appears to be not much impact on the victim, as far as the injuries are concerned. 

21.According to the admission by the defendant under caution, in the Agreed Facts he said he was angry at the victim who came to warn him off his car and he therefore went to buy a knife from a nearby shop.  He also wore a pair of gloves to prevent himself being hurt by the knife with the intent to stab the victim.  It is part of the Agreed Facts that the victim asked the defendant to get away from the car at 1400 hours. 

22.The defendant was in the vicinity of the car at 1614 hours on the same day with the knife and approached the car, trying to open the passenger door on the car and fled after the victim shouted at him.  He attacked the victim when the victim chased him.

23.There is a time gap of nearly three hours between the time when the victim first asked the defendant to get away from his car and the commission of the present offence.  The commission of the offence was not committed, as one would describe as, on the spur of the moment. 

24.It is lucky that the victim did not suffer serious injuries as a result because the fruit knife could have caused much more serious or even fatal injury.  It is true that the defendant did not persist on further assaults on the victim; he only attempted once with the stab.

25.Before sentencing, the court had called for two psychiatric reports on the defendant.  Both psychiatrists are of the opinion that the defendant suffers from paranoid schizophrenia.  However, none of these reports did suggest that at the material times when the defendant committed the offence, he was under the influence of the said illness.  Nevertheless, both reports said the defendant is a threat to the society. 

26.Concerning the present offence, the defendant said to the psychiatrists that on the day of offence he bought the knife for his own use and he admitted having tampered the lock of the car that was parked on the street but he could not open the door.  The victim turned up and began to chase him and he ran and waited around the corner of the street and then attempted to stab the victim’s abdomen with his fruit knife.

27.It appears, therefore, that although he is suffering from paranoid schizophrenia, that there is no evidence that he has committed the present offence under the influence of the illness; his culpability, therefore, is not lessened because of the illness.

28.Nevertheless, both psychiatrists say that despite there is some decreased intensity in psychotic symptoms after he has been given treatment at Siu Lam Psychiatric Centre, the defendant still poses risk against others and further inpatient psychiatric treatment is necessary.  It is suggested that there be a hospital order for 4 months under section 45 of the Mental Health Ordinance.

29.This court is aware that since defendant has a clear record and since his arrest on 16 October 2017, he had been in custody for 10 months-odd. 

30.In sentencing the defendant, I have considered the nature of the charge, the facts of the case, the medical injuries of the victim and the recommendation by Dr Liu and Dr Tam.

31.On the facts of this case, if I were to sentence the defendant to a term of imprisonment, I would consider a sentencing starting point of 2 years and 6 months, and because of his guilty plea, he is entitled to a full one-third discount.  Although I have also considered other mitigation advanced by defence counsel, in my view there is no other valid mitigating factor other than his guilty plea. 

32.In the circumstances of this case, I am willing to approach the sentencing exercise to facilitate treatment of the defendant.  I therefore adopt the recommendation by Dr Liu and Dr Tam.  It is in the interests of the defendant and that of the public at large that the defendant should receive a hospital order and inpatient treatment at a mental hospital. Accordingly, I make a hospital order under section 45 of the Mental Health Ordinance.  The defendant should be detained in Siu Lam Psychiatric Centre for 4 months.