HKSAR v. Chan Hong Yu

DCCC 64/2019

[2019] HKDC 1354

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 64 OF 2019

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Reasons for Sentence

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Charge and facts

1.The Defendant (“D”) pleads guilty to a charge of wounding with intent contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212. 

2.In late September 2018, PW1 and the Defendant first met at an arcade centre in Mong Kok where the Defendant asked to borrow $200.  PW1 agreed and lent $200 to D. 

3.At about 1700 hours on 3 October 2018, PW1 and two of PW1's friends (including PW2) went to find the Defendant at the pedestrian footbridge at Yim Po Fong Street, Mong Kok, Kowloon. The Defendant was found there, and PW1 asked him to repay the HK$200 debt. The Defendant said he did not have money, and suddenly pulled out a beef knife (PW1 estimates about 30 cm in length) from underneath his belongings and attacked PW1.  After swinging the knife at PW1 about 3 times, the Defendant fled the scene with the knife.  Because PW1 was bleeding, his friends immediately took him to Kwong Wah Hospital for emergency treatment. 

4.Upon medical examination, PW1 was found to have suffered a 5cm traverse laceration over the left forearm, a 3cm crescent shaped laceration over left elbow region, a 4cm traverse laceration over his left anterior shin and a longitudinal abrasion wound over the left knee. Wound suturing was performed and PW1 was discharged on 5 October 2018 (against medical advice). 

5.D was found by police on 11 October 2018.  Under arrest and caution, the Defendant said the male approached him to chase for debt repayment and also pour urine over him, so out of anger the Defendant chopped the male.

6.In his video-recorded interview, the Defendant further admitted under caution that he swung the beef knife at PW1 and chopped PW1 because PW1 put urine on him (D) which scared his (D's) wife. The Defendant himself was a street sleeper and he found the beef knife discarded at an unknown location.  After the incident, he threw the knife into the sea. He admitted to owing money to PW1 in the range of $500 to $600.

7.In an identification parade on 6 November 2018, PW1 and his friend (PW2) both positively identified the Defendant as PW1's attacker. 

Mitigation

8.The Defendant is 38 years of age.  He was educated up to primary school level.  He was unemployed at the time of arrest.  He had been sentenced to the Training Centre or jail, as the case may be, for offences of violence in 1996 for assaulting occasioning actual bodily harm, in 1999 for assaulting a police officer and common assault, in 2005 for common assault, in 2011 for 2 counts of conspiracy to wound with intent to do grievous bodily harm.  The last-mentioned matter had him jailed for 3 years 3 months altogether. 

9.As the Defendant had not been convicted of any offence of violence for 7 years before committing the present offence, a duration of 7 years in between, I do not regard his previous records as an aggravating factor in his sentence today.     

10.It is advanced in mitigation that the Defendant, who was asleep with his girlfriend (Madam Lau Wai-yee) was woken up by some urine on his face, as much as on his girlfriend’s face.  No one else was around.  PW1 then demanded for repayment of $200.  Suddenly woken from sleep, the Defendant lost his temper and pulled out a beef knife to chop PW1.  In a Newton hearing to ascertain such a fact, PW1 and PW2 give evidence in denial of having poured urine on the Defendant whereas Madam Lau and the Defendant give evidence in support of it.  PW1’s version of the incident is different from PW2’s in court.  There are also clear inconsistencies between PW1’s evidence in court and PW1’s witness statement.  Inconsistencies also featured between PW2’s evidence in court and PW2’s witness statement.  On the opposite side, the Defendant’s version in court is consistent with his video-recorded interview and Madam Lau’s version in court.  I believe the evidence of Madam Lau and the Defendant.  I am prepared to reduce the sentence based on the Defendant’s being provoked to a certain extent by the urine poured on him whilst asleep.     

Sentencing considerations

11.In Secretary for Justice v Hau Ping-chuen [2008] 3 HKC 398, the Court of Appeal observes that the usual range of sentence for armed attack on defenceless victim is 3 to 12 years. 

12.The Defendant’s solicitor Mr. Mui refers to 2 cases as examples of the sentence for wounding.

13.The first case is HKSAR v RAI Dambarsing [2019] HKDC 397.  There the Defendant and his cohabitant (a Filipino lady) had broken up relationship.  His cohabitant resumed relationship with her prior boyfriend (a Chinese man).  The Defendant had an argument with them and punched her (Charge 1).  While on police bail and about 6 weeks later, he used a chopper to wound the Chinese man, causing the latter some superficial injuries (Charge 2).   The court took a starting point of 42 months for the wounding itself, and 3 months extra for his committing Charge 2 whilst on bail for Charge 1. 

14.The second case is HKSAR v Chu Sze Wing CACC 289/2011.  There the Defendant and the victim were each occupant of a wooden cubicle in a very crowded apartment.  There was a long history of arguments over noise or use of facilities.  In one particular instance, the Defendant chopped the victim 3 times on the head in a trivial argument.  Wounds of between 3 cm and 5 cm long with serious bleeding were occasioned.  He was sentenced to 5 years after trial.  The Court of Appeal reduced the sentence to 4 years. 

Sentencing the Defendant

15.It was not a planned attack on PW1.  There were 4 lacerations on PW1’s limbs.  The shortest one was 3 cm whereas the longest one was 5 cm.  PW1 was discharged against medical advice 2 days later.  It reflects that despite being chopped by a beef knife, his condition was not too serious. I consider a starting point of 3 years.  After the one-third discount for the plea of guilty, the sentence is 2 years.  I reduce the sentence by 3 months due to the Defendant suddenly being woken from sleep by PW1’s group, who poured urine on him and his girlfriend.  The sentence is 21 months.