HKSAR v. Kei Chak Yan

DCCC 667/2018

[2020] HKDC 194

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 667 OF 2018

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REASONS FOR SENTENCE

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INTRODUCTION

1.The defendant is convicted upon his own guilty plea of the charge of causing grievous bodily harm with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap.212.

FACTS

2.In the late evening on 4 April 2018, the defendant and the 58-year-old victim in this case were both at Golden Dragon Game Centre situated at Nos.46-54 Temple Street, Yau Ma Tei, Kowloon (the “Game Centre”). At about 11:25 pm when the defendant saw the victim in the Game Centre, he approached the victim and confronted the victim about the game points (worth approximately HK$150) which was allegedly borrowed by the victim from the defendant previously.

3.There was an exchange of foul language between the defendant and the victim. A few seconds later, the defendant was seen hitting the victim with a metal stool with long legs. The victim fell onto the ground. The defendant then hit the victim once in the victim’s chest area. The defendant then left the Game Centre.

4.At about 11:25 pm on the same day, a staff member of the Game Centre discovered the victim lying down on the ground unconsciously. The victim’s face was swollen whilst blood was seen coming out of his nose and mouth. A report was made to the police immediately.

5.Recording of the CCTV installed in the Game Centre shows:

● At 23:26:03 hours, the victim walked towards the defendant and the defendant leaned towards the victim to hear what the victim was saying;

● At 23:26:13 hours, the defendant bumped into the victim, and the two of them pushed each other;

● At 23:26:15 hours, the victim tried to pick up something;

● At 23:26:16 hours, the defendant picked up a stool and hit the victim’s head once with that stool. The victim fell onto the floor;

● At 23:26:19 hours, the defendant threw the seat of the stool at the victim thus hitting the victim’s lower body; and

● At 23:27:40 hours, the defendant kicked the victim’s right leg once and then left the Game Centre.

6.The victim was forthwith admitted to the hospital for medical treatment. He received emergent operations and was subsequently admitted to the Intensive Care Unit. He was hospitalized from 5 April 2018 to 20 June 2018, i.e. for over 10 weeks, and remained in a coma throughout that period.

7.The medical report on the victim stated that:

● The victim was unconscious upon arrival at the hospital;

● The victim sustained right periorbital haematoma and left scalp haematoma over temporal region;

● CT scan of the victim’s brain showed skull fracture, right acute subdural haematoma, traumatic subarachnoid haemorrhage and right frontal, temporal, parietal intracerebral haemorrhage;

● Emergency right craniotomy was performed; and

● Tracheostomy was also performed.

8.The victim was admitted to a rehabilitation centre after being discharged from the hospital. He passed away on 29 May 2019. The cause of the victim’s death was unrelated to the incident happened on 4 April 2018.

9.The defendant was arrested at 12:35 am on 6 April 2018 somewhere near Tsim Sha Tsui Police Station. Under caution, the defendant said he was frightened when the victim approached him and hit him inside the Game Centre. When the defendant saw the victim trying to pick up a stool, the defendant also picked up a metal stool in retaliation. The defendant said he had not meant to hurt the victim.

10.In a subsequent cautioned video-recorded interview, the defendant said, inter alia, that:

● At the material time in the Game Centre, he approached the victim and asked the victim to repay HK$200 the victim borrowed from him around a month ago;

● The victim denied owing the defendant any money;

● The victim hit the defendant once on his chest first;

● The victim then tried to grab a metal stool;

● After the defendant had retracted a few steps, he told the victim not to leave as he was going call the police;

● The victim threatened to beat him to death then and there;

● The defendant had reacted by picking up a stool and swung it at the victim;

● The cushion of the stool fell off whilst the legs of the stool hit the victim’s head;

● The victim fell onto the ground. The defendant kicked him once to see if the victim is still conscious; and

● The defendant then left the Game Centre.

DEFENDANT’S BACKGROUND AND PREVIOUS CONVICTION RECORD

11.The defendant was born in Hong Kong in October 1978. He is now 41 years old. He received education up to Form 3 level. He is a divorcee with a 12-year-old son. Prior to his arrest in April 2018, he used to work as a casual aluminium window technician earning about HK$20,000 per month.

12.The defendant has 10 previous convictions, out of which there were 2 convictions of common assault sentenced in June 1994, 1 conviction of common assault sentenced in March 2008 and 2 convictions of criminal damage sentenced in June 2018.

MITIGATION

13.Counsel for the defendant Ms Lee relied on “D’s written submission on mitigation” dated 20 March 2020. Ms Lee submitted inter alia that:

● The strongest mitigating factor in this case is the defendant’s indication of guilty plea at the first opportunity;

● The attack on the victim was not premeditated; and

● The defendant only swung the stool at the victim once.

14.Ms Lee referred the court to the following judgments:

● HKSAR v Hau Ping Chuen [2008] 4 HKLRD 673

● HKSAR v Chan Chun Tat CACC 317/2012

● HKSAR v Yuen Wai Kui CACC 280/2004

● 香港特別行政區 訴 譚家傑 (Tam Ka Kit) CACC 191/2015

● 香港特別行政區 訴 林鎮偉DCCC 1157/2013

● HKSAR v Ching Pak Ho, Parkol DCCC 40/2012

15.Ms Lee submitted that a starting point of about 4 years’ imprisonment and no more than 5 years would be appropriate for the charge. A mitigation letter from the defendant was also submitted to this court at today’s hearing.

SENTENCE

16.In HKSAR v Chu Sze Wing CACC 289A/2011, the Court of Appeal reviewed a number of judgments[1] and said:

“12. What emerges from these judgments is that there is no sentencing tariff. Each case is dependent on its own circumstances. However, the usual range will be between 3 to 12 years’ imprisonment.”

In Chu Sze Wing case, the appellant used a chopping knife to strike at the face and head of a man named Ho who sustained three wounds: a 3 cm wound to Ho’s forehead, a 5 cm wound to Ho’s right cheek and a 4 cm wound to the left corner of Ho’s mouth. The wounds sustained by Ho were not serious and Ho was released from hospital on the same day. The Court of Appeal considered the attack by the appellant not premeditated and the injuries not serious, and was of the view that the appropriate sentence should have been one of 4 years’ imprisonment.

17.In HKSAR v Ma Tik Lun Dicky CACC 112/2013, the Court of Appeal dismissed the application for leave to appeal against sentence of 6 years’ imprisonment after trial. The Court of Appeal reiterated the major sentencing considerations for the offence of wounding with intent stated in HKSAR v Chan Chun Tat [2013] 6 HKC 225[2]. It was stated in paragraph 42 of the judgment that:

“42. … The present case is serious in that the attacks launched by the applicant’s group had caused very serious injuries to Luk. All the medical reports point to only one conclusion: Luk sustained very serious injuries. As a result of the attack, Luk suffered from cognitive impairment as well as other injuries and was hospitalized for 40 days to undergo various operations and treatments. When he was discharged, the doctor expected that it would take one to two years for him to recover. He could not be sure if Luk suffered from permanent trauma.”

18.In HKSAR v Galanza, Arnel Cabingas CACC 304/2003, the Court of Appeal dismissed the application for leave to appeal against sentence of 6 years’ imprisonment after trial. In that case, two men assault a man named Castro with a piece of concrete and a wooden stick while the other two kicked Castro. As a result, Castro suffered serious injuries to his back and head, including lacerations and a depressed skull fracture. He was hospitalized for about two weeks. The Court of Appeal said:

“29. This Court has emphasized the seriousness of an attack on the head of a victim with lethal instrument because of the potential injuries that such attack caused. (See the judgment in Secretary for Justice v Ma Ping Wah [2002] 2 HKC 566)

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32. It was fortuitous that Mr Castro suffered no permanent injuries, but he was hospitalized for about two weeks.

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37. The attack was inexplicable, but appeared to be a momentary act of violence as a result of a sudden outburst of temper.”

19.I have also considered the judgements in HKSAR v Wong Chee But CACC 217/2006, 香港特別行政區 訴 邢林DCCC 652/2013 and HKSAR v Tsang Sun Ming DCCC 551/2019. The facts of those cases are not quite the same as those in the present case.

20.In the present case, I accept that the attack was not premeditated and only lasted for 1 minute and 27 seconds from 23:26:13 hours when the defendant and the victim pushed each other until 23:27:40 hours when the defendant kicked the victim’s leg and then left the Game Centre. I also accept that the victim seemingly tried to pick up something before the defendant picked up a stool and hit the victim’s head once. However, the seriousness of this case lies on the injuries caused to the victim – as a result of the attack, the victim was hospitalized for over 10 weeks and remained in a coma throughout. Thereafter the victim stayed in a rehabilitation centre until he passed away on 29 May 2019.

21.In light of all the circumstances surrounding the present case, I adopt a starting point of 51 months’ imprisonment.

22.I give the defendant 1/3 discount as a result of his timely indication of his guilty plea. There being no further valid mitigating factors justifying further reduction in sentence, the defendant is sentenced to 34 months’ imprisonment.