HKSAR v. Nip Ching Wai

DCCC 1115/2020

[2021] HKDC 972

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1115 OF 2020

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REASONS FOR SENTENCE

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1.Mr Nip pleaded guilty before me to 9 charges on a Charge Sheet as follows.

2.Charge 1 is Common assault, contrary to Common Law and punishable under section 40 of the Offences against the Person Ordinance, Cap 212.  Particulars are that he, on 31 August 2016, at Ground Floor, Sha Tin Public Library, No 1 Yuen Wo Road, Sha Tin, New Territories, in Hong Kong, assaulted Leung Wai Man.

3.Charge 2 is Assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance, Cap 212.  Particulars are that he, on 23 June 2017, outside MTR Sha Tin Wai Station, Shatin, New Territories, in Hong Kong, assaulted Leung Wai Man, thereby occasionally him actual bodily harm.

4.Charge 3 is Common assault.  Particulars are that he, on 5 August 2017, near the entrance of the market, Shui Chuen O Estate, Sha Tin, New Territories, in Hong Kong, assaulted Leung Wai Man.

5.Charge 4 is Assault occasioning actual bodily harm.  Particulars are that he, on 26 October 2019, outside Pok Chi House, Pok Hong Estate, Sha Tin, New Territories, in Hong Kong, assaulted Leung Wai Man, thereby occasioning him actual bodily harm.

6.Charge 5 is Common assault.  Particulars are that he, on a day unknown in early 2020, at the bus terminus, Shui Chuen O Estate, Sha Tin, New Territories, in Hong Kong, assaulted Leung Wai Man.

7.Charge 6 is Criminal damage, contrary to section 60(1)  of the Crimes Ordinance, Cap 200.  Particulars are that he, on a day unknown in early 2020, at the bus terminus, Shui Chuen O Estate, Sha Tin, New Territories, in Hong Kong, without lawful excuse damaged one pair of glasses, being property belonging to Leung Wai Man, intending to damage such property or being reckless as to whether such property would be damaged.

8.Charge 7 is Wounding with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap 212.  Particulars are that he, on 23 June 2020, outside Yuen Chau Kok Complex, No 35 Ngan Shing Street, Sha Tin, New Territories, in Hong Kong, unlawfully and maliciously wounded Leung Wai Man with intent to do him grievous bodily harm.

9.Charge 8 is Criminal damage.  Particulars are that he, on 23 June 2020, outside Yuen Chau Kok Complex, without lawful excuse damaged one pair of glasses, being property belonging to Leung Wai Man, intending to damage such property or being reckless as to whether such property would be damaged.

10.Charge 9 is Possession of an offensive weapon in a public place, contrary to section 33(1)  and (2)  of the Public Order Ordinance, Cap 245. Particulars are that he, on 29 June 2020, in a public place at lift lobby, 8^th Floor, Shan Chuen House, Shui Chuen O Estate, Sha Tin, New Territories, in Hong Kong, without lawful authority or reasonable excuse, had with him an offensive weapon, namely one hammer.

Summary of the facts admitted by Mr Nip

11.Because of some minor incidents in March to May 2016, Mr Nip began to harbor a grudge against Leung Wai Man (PW1).

Charge 1 Common assault

12.On 31 August 2016, in a public library, Mr Nip glared at PW1 and later hit his neck from behind with a hard object.  Mr Nip then left without saying a word.

Charge 2 AOABH

13.On 23 June 2017, outside an MTR Station, Mr Nip came head-on with PW1 and punched the corner of PW1’s left eye once without saying anything.  Before Mr Nip could punch him again, PW1 ran.  Medical examination found PW1 to have peri-orbital bruise and conjunctival injection on his left eye.

Charge 3 Common assault

14.On 5 August 2017, at G/F, at Shui Chuen O Plaza, Mr Nip glared at PW1 without saying anything.  PW1 avoided Mr Nip by walking towards the market of a nearby estate.  Mr Nip followed suit.  Near the entrance of the market, Mr Nip caught up with PW1 and tried to punch him in the face with his left fist.  PW1 blocked the attack with both hands.  Mr Nip kicked PW1’s bum bag.  PW1 shouted and pleaded with Mr Nip.  A passer-by intervened.  Mr Nip swore at the passer-by and left.

Charge 4 AOABH

15.On 26 October 2019, outside Pok Chi House, Pok Hong Estate, Mr Nip rushed towards PW1 and hit the top of his head and his right forehead with a wooden rod.  PW1 tried to block the attack with his hand.  Mr Nip fled.  PW1 was later found to have sustained (i)  swelling and tenderness over left occipital region; (ii)  swelling over right wrist; and (iii)  abrasion wound over bilateral hand.

Charge 5 Common assault and Charge 6 Criminal damage

16.On a day unknown in early 2020, at a bus terminus, Mr Nip punched PW1 in the head for a few times.  PW1 tried to block the attacks with his hands.  His glasses also fell.  Mr Nip stepped on those glasses a few times resulting in damage.  PW1 ran away.

Charge 7 Wounding with intent and Charge 8 Criminal damage

17.On 23 June 2020, in a public library, PW1 saw Mr Nip and avoided him. Twenty minutes later, when PW1 left the library, he saw Mr Nip standing at a place nearby.  PW1 asked Mr Nip not to hit him as he had heart disease.  After PW1 turned around, the left side of his head was hit with a hard object from behind.  PW1 fell and his glasses also fell.  Mr Nip then tried to hit PW1’s upper body with a hammer; PW1 blocked the attack with his left arm.  Mr Nip then hit PW1’s left forehead with the hammer.  Mr Nip also stepped on PW1’s glasses before kicking them away.  He then left.

18.PW1 was later found to have sustained (i)  5 cm laceration on left scalp with active bleeding; and (ii)  tenderness and swelling over left forearm.  PW1 stayed in hospital for treatment for 6 days.

Charge 9

19.On 29 June 2020, ie the same day PW1 was discharged from hospital, police intercepted Mr Nip at the lift lobby outside his residence.  Mr Nip was arrested for “Wounding” and “Criminal damage”.  At that time, he was carrying a backpack.  Police later found a hammer in the backpack.  Under caution, Mr Nip stated that the hammer was carried for the purpose of self-defence in light of recent riotous events.

20.PW1 later recognized the said hammer as the weapon used for the attack under Charge 7.

Criminal record

21.Mr Nip has one criminal record not similar in 2010 for which he was sentenced to serve a term of 21 days in prison.

Antecedents

22.Mr Nip is aged 36 (31 to 35 at the time of the offences), educated to secondary 2 level, used to work as a container hauler but unemployed since 2019.  Mr Nip is single.

Psychologist’s report

23.On 21 July 2021, I ordered a psychologist’s report on Mr Nip.  The report that came back concluded that Mr Nip did not exhibit features of any major psychopathology; however, his risk of violent re-offending was assessed as moderate and fell on the upper-half range.

Mitigation

24.Mr Foster Yim of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Nip.

25.The following is a summary of the mitigation submissions.

26.Before his arrest, Mr Nip was living with his 70-year-old father in public housing in Shatin.  Mr Nip has grudges with the victim in or around early 2016.

27.Mr Yim submitted that Charge 7, wounding with intent, is the most serious of the 9 charges.  Mr Yim referred to the case Secretary for Justice v Hung Kar Chun [2011] 1 HKLRD 1083.  It was submitted that Mr Nip used a hammer and that the attack (after the previous 5 incidents)  could not be said to be unpremeditated.  It was submitted that the injury suffered by the victim was much less serious than that in Hung Kar Chun and therefore a starting point of 12 months could well reflect the culpability of Mr Nip.

28.As regards Charge 9, possession of offensive weapon, Mr Yim submitted that given its minor nature as compared with a knife, a starting point of 6 months would adequately reflect the seriousness of the case.

29.Furthermore, Mr Yim submitted that a starting point of 3 weeks for the common assault charges, a starting point of 6 weeks for the criminal damage charges and a starting point of 3 months for AOABH charges would be appropriate.

30.It was submitted that Charges 5 & 6 arose out of the same incident; and Charges 7 to 9 arose out of another incident; therefore the sentences on Charges 5 & 6 should be allowed to run concurrently and that similarly, the sentences on Charges 7 to 9 should also be allowed to run concurrently.  After being reminded that the offence under Charge 9 happened on a later date, Mr Yim conceded that it should be dealt with separately.

31.Mr Yim asked the court to take into account the totality principle and impose a sentence that would allow Mr Nip an immediate release.

32.In the end, Mr Yim fell back to reality and suggested a starting point of 3 years’ imprisonment for Charge 7.

33.After explaining the psychologist’s report to Mr Nip and upon taking further instructions, Mr Yim submitted that Mr Nip is absolutely normal and promises that he will not re-offend.

Sentence

34.At my request and without objection from the Defence, the prosecution submitted a photo album mainly to show the injuries and the shape and size of the subject hammer.

35.The offences spanned from August 2016 to June 2020, a period of almost 4 years.

36.As was correctly recognized by Mr Yim for Mr Nip, the most serious offence is that of wounding with intent.

37.In Hung Kar Chun, supra, it was held that while there were no sentencing guidelines for that offence, sentences should range between 3 and 12 years’ imprisonment.  In my judgment, as the facts of each case and the circumstances of each defendant can vary so much from the next, it is not helpful to compare the sentences imposed in different cases.

38.The hammer used for the attack under Charge 7 is one-foot long and belongs to the category of a medium-size home-use hammer.  Fortunately, the injuries sustained were not too serious.  However, one cannot ignore the fact the one of the blows that landed on the victim’s head was thrown from behind. This is cowardly, evil and insidious.  Because of the stealthiness of the attack, there is no direct evidence of what weapon was used.  Giving the benefit of the doubt to Mr Nip, I accept that it could be a fist.

39.Taking all of his conduct as a whole in this episode of wounding with intent to cause grievous bodily harm, I am of the view a basic starting point of less than 3 years and 3 months would be unrealistic.  Because this attack on the victim was the 6^th in a series of attacks over a period of almost 4 years, I add a period of 3 months as reflection of this aggravating factor.  For this reason, I adopt 3 years and 6 months as the final starting point for Charge 7.

40.As for Charge 8, this is the second time (the first was under Charge 6)  that Mr Nip destroyed the victim’s glasses.  This is a particularly heinous example of damaging another person’s property because it caused a lot of inconvenience to the user not only on the day itself but also for a considerable period thereafter when a new pair of glasses was being prepared. For the aggravating factor of the repeated commission of the same offence, I shall add 6 days to the basic starting point of 42 days resulting in a 48 days’ final starting point.

41.For Charges 1 and 2, I will accede to Mr Yim’s suggestion of a starting point of 21 days and 3 months respectively.

42.For Charge 3, because of the repeated commission of the same offence as that under Charge 1, I will adopt a starting point of 24 days.

43.For Charge 4, because of the repeated commission of the same offence as that under Charge 2, I will adopt a starting point of 3 months and 15 days.

44.For Charge 5, because of the repeated commission of the same offence as those under Charges 1 and 3, I will adopt a starting point of 27 days.

45.For Charge 6, I will accede to Mr Yim’s suggestion of a starting point of 42 days.

46.For Charge 9, the maximum penalty is 3 years’ imprisonment.  The hammer possessed is in no way a light weapon and could cause serious injury even death in some cases if used on the head.  Giving weight to the mitigating explanation that it was only to be used as a defensive weapon, I shall adopt a lower starting point of 9 months’ imprisonment.

47.Save for the offences subject of Charges 5 and 6 (as a pair)  and Charges 7 and 8 (as another pair)  for which separately concurrent sentences could be considered, the other offences all occurred on different dates and at different places and therefore consecutive sentences are called for subject only to totality.

48.Given that the whole course of conduct spanned almost 4 years resulting in the victim having to undergo a continuous period of frightful ordeal for the same period, I consider a global starting point of 4 years to be fully justified.  I am satisfied this will give Mr Nip sufficient deterrence against his re-offending given that the only time that he was imprisoned previously was for a term of 21 days in 2010.

49.Mr Nip pleaded guilty in time for which he shall be entitled to a 1/3 discount.  I can see no other mitigating factors of sufficient weight to warrant further discounts.

50.I will impose the following individual sentences on Mr Nip.

(Mr Nip, please stand)

51.For Charge 1, the prison term is 14 days.

52.For Charge 2, the prison term is 2 months.

53.For Charge 3, the prison term is 16 days.

54.For Charge 4, the prison term is 2 months and 10 days.

55.For Charge 5, the prison term is 18 days.

56.For Charge 6, the prison term is 28 days.

57.For Charge 7, the prison term is 2 years and 4 months.

58.For Charge 8, the prison term is 32 days.

59.For Charge 9, the prison term is 6 months.

60.I order that the sentences on Charges 5 & 6 are to run concurrently as Group A.  I order that the sentences on Charges 7 & 8 are to run concurrently as Group B.

61.After considering totality, I order that the sentences on Charges 1, 2, 3, 4, 9 and on Group A are to be served concurrently among themselves but 4 months of this set of concurrent sentences (ie 6 months)  are to be served consecutively to the sentence on Group B (ie 28 months), resulting in an aggregate sentence of 32 months’ imprisonment.