HKSAR v. Chau Lin Kiu

DCCC 426/2020

[2021] HKDC 213

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 426 OF 2020

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Reasons for Sentence

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Charges

1.The defendant pleaded guilty to a single charge of wounding with intent, contrary to section 17(a)of the Offences against the Person Ordinance, Cap 212.  The offence occurred outside the PARKnSHOP superstore in Sceneway Plaza in Lam Tin in Kowloon on 29 October 2019.

2.The facts are straight forward and agreed.  At that time, which was 11.30 am in the morning, the defendant was accompanying his wife and the victim, described as PW1, had a dispute with the defendant and the defendant’s wife at Sceneway Plaza. 

3.In the course of this dispute, the defendant took out a fruit knife from his rucksack, waved it towards PW1’s neck, and after that PW1’s neck was seen to be bleeding.  The waving of the knife caused a laceration on the neck of PW1.  The laceration was 3 centimetres long and eventually 14 stitches were applied by way of medical treatment.  I have no more information upon that.  I assume that the victim made a full recovery from his injuries.

4.The defendant was witnessed committing the offence.  The knife was recovered.  It is described as a foldable knife, 17.5 centimetres long with a 7.5-centimetre blade.

5.The defendant made a video-recorded interview in which he made immediate admissions to the offence.  He said that the victim had sworn at him and pushed him.  He had taken the knife out of his rucksack.  The knife had been used for cutting fruits and was placed there for that purpose. He had thrown the knife away, but it had been recovered, and he admitted he had used the knife to attack the victim and, in fact, everything was captured on a CCTV camera.

6.The defendant’s antecedents are as follows.  He can be described as elderly.  He is aged 81.  He has no criminal record, educated to Primary 5, relying on old-age allowance since retirement.  He retired some 20 years ago.

7.I obtained a report on the defendant given his age and given the nature of the offence.  As far as his family is concerned, he has children, a son aged 33 and a daughter aged 31.  He lives in his address in the Nam Shan Estate with his wife. 

8.There had been some concern about the social welfare services for the defendant’s wife’s state.  She has suffered from a condition known as morbid jealousy.  But I am confident having read the report that it is well controlled and the situation regarding the defendant’s family causes no concern.

9.The defendant attributed the offence to a lack of self-control.

10.Turning to the offence itself, I have been helpfully provided with a number of authorities about the approach that should be taken in sentencing.  It is clear that there is no sentencing tariff for this particular offence of wounding with intent.  Sentences depend on their own facts because each case could have a simple range of different facts appropriate to it. 

11.There is a guideline sentence in the HKSAR v Chan Chun Tat, which is CACC 317/2012, Court of Appeal case, which said that the usual range of sentencing in respect of an offence of this nature after trial, where the conviction is after trial, is between 3 to 12 years’ imprisonment. 

12.There are a number of factors to be considered in determining the gravity of the offence and the relative culpability of the offence.  The most important factor, perhaps, is the extent to which the assault is premeditated, any reasons or motivation underlying the assault, the mental or emotional state of the assailant at the time of the assault, whether drugs or alcohol had been used, whether it was committed alone or as part of a group, the type of weapon employed, the level of force and aggression, and the persistence with which the offence is pursued.  Also, the injuries to the victim and the effect of the assault upon the victim and those close to him.

13.Besides that case, I have also been referred to another case, HKSAR v Wong Luk Sau, CACC 2/2012, involving a defendant aged 72, and a victim aged 78.  That involved a quarrel over a chess game.  A knife was used.  The victim suffered some injuries that were not serious and there was an element of premeditation in having the knife brought along to the quarrel which had been in existence for more than two or three days.

14.The Court of Appeal in that case said the range of 3 to 12 years is not a sentencing tariff, the court is not obliged to impose 3 years’ imprisonment as a minimum term.  They took into account the defendant’s old age, medical condition, heart operation and criminal record, and took a starting point sentence at 2 years and 3 months on the appeal.

15.Taking those factors when looking at Mr Chau’s case, it would appear that obviously the defendant is a lot older, aged 81.  He suffers from some medical problems associated with his old age such as high blood pressure stuff. 

16.Insofar as appreciation of the offence itself is concerned, the knife the defendant had was a fruit knife.  The case is not put forward on the basis he brought the knife to the fight.  It is put on the basis that this was a weapon of opportunity.  The defendant had the knife in his rucksack and was able to use it for the purpose of the offence, so there would be less of an element of premeditation that is found in the HKSAR v Wong Luk Sau.

17.The injuries are fairly serious, a laceration requiring 14 stitches is a serious matter, and the offence was committed in a public place. 

18.Having taken all the factors into consideration, I believe the court can see this as being a less serious assault than the case of HKSAR v Wong Luk Sau, having regard to the defendant’s age and the lower level of premeditation involved.  Nevertheless, a sentence of imprisonment is still appropriate, and that sentence should immediately take effect, even having regard to the defendant’s age and the remorse shown.

19.Taking all these factors into account, I take a starting point for this offence of 2 years’ imprisonment.  After deduction for the defendant’s plea of guilty, that leads to a final sentence of 16 months’ imprisonment for the defendant on this charge.