HKSAR v. Chan Kwok Ching

HCCC 341/2018

[2019] HKCFI 2050

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 341 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant has pleaded guilty in the Magistrates’ Court to one count of assault occasioning actual bodily harm, contrary to Common Law, and one count of criminal damage of a mobile telephone.

The facts, which I have heard, are that PW1 whom we call Madam X and he were lovers and they had a daughter together and, unfortunately, Madam X returned to her husband and as their daughter grew older, Madam X was refusing for the defendant to see his daughter.

Things came to a head on 4 February last year when the defendant took Madam X back to his flat. It is clear that there was a dispute and arising from the fact of the visitation of the daughter, over money, and tempers flared and thus the defendant then assaulted Madam X with fists and slaps.

It was certainly a case where, as Mr Pannu pointed out, Madam X did say that she did fight back, and in the evidence given by the defendant, which obviously the jury and most of them did accept, is that she did fight him and at one stage did use a plastic stool and a coat hanger.

Madam X did receive bruising which I can see from the photographs which were exhibited in the jury bundle. Her injuries were mostly over her face and her arms and legs. But as Mr Pannu pointed out, in the medical report, it was suggested by the doctor that the neck, the mid-neck injury which was yellowish in colour was less likely to have been made on 4 February and also the bruising on the legs were less likely to have been done on 4 February. However, the bruising over the face was quite extensive. However, she did not require any stitches and she was in fact also not required to stay in hospital at all.

Now, Mr Pannu said in mitigation the defendant is remorseful and I accept that he was remorseful because not only did he admit to everything when he was arrested by the police, he in fact wrote to the husband of Madam X, also saying that he would bear full responsibility. And I might add that his message to the husband of Madam X was before he was arrested, asking the husband of Madam X to take good care of the baby and also of his cat. So in fact this assault on Madam X, one could actually see it as a sort of domestic violence. It cannot be condoned because no one should be treated with violence.

Defendant is aged 32 and he does have previous convictions but none to do with violence, but mostly to do with dishonesty. As I accept his remorse, I accept that he, as Mr Pannu said, is going to turn over a new leaf. It was unfortunate that he was involved in this very tragic three‑way domestic arrangement which, I am told, initially when he started the affair with Madam X, he did not know she was married. I have no doubt that the defendant had strong feelings for his daughter and for Madam X and these offences were committed out of momentary rage at the fact that he was not allowed to see his daughter anymore.

I therefore consider that in effect, the assault is serious in that Madam X did receive some bruising, pain and this sort of action should not be condoned. However, I think in view of all the background to this case, I would sentence the defendant to 9 months’ imprisonment but because he had pleaded guilty at the earliest opportunity and was remorseful, it is reduced to 6 months’ imprisonment.

As to the criminal damage of the phone, I know the defendant has been incarcerated ever since his arrest on 5 February and I would impose a sentence of 3 months’ imprisonment reduced to 1 month because of his plea. And in considering totality, I will make the 1-month sentence concurrent with the 6 months in the 1st.

(Discussion re sentence)

And I will make the 2 months’ imprisonment on the 2nd count of the criminal-damage charge to be concurrent to the 6 months of the assault-occasioning-actual-bodily-harm charge. So he goes to prison for a total of 6 months. And I think because he has been incarcerated already for so long, that would allow for his immediate release.

All right. Now, I would also suggest to you, defendant, that if you wish to pursue visitation rights for your daughter, you must go and apply for legal aid, get their help and do it properly, all right? These are highly emotional matters and it helps if you can get assistance from the proper legal sources in order to pursue your rights. All right, and I would not suggest that you talk to the Madam X or her husband, all right? You really have to keep out of trouble, all right?

ACCUSED: Understand.