HKSAR v. Ho Ka Ho

DCCC 289/2021

[2021] HKDC 886

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 289 OF 2021

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Reasons for Sentence

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1.The defendant has pleaded to one count of wounding, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap 212. The particulars of the charge are that the defendant, on 7 December 2020, outside Shin Nga House, Fu Shin Estate, Tai Po, New Territories, unlawfully and maliciously wounded Chau Chung-sum with intent to do him grievous bodily harm.

2.The victim, a 60-year-old male, did not know the defendant.  They did not know each other.  At about 9.10 am on 7 December, whilst the victim was waiting for his wife at an open area at the ground level, the defendant approached him, smiling.  Nothing was said between them before the defendant suddenly took out a 45-centimetre-long beef knife from his rucksack.  When the victim saw the beef knife, he went to run away but slipped and fell to the ground.  The defendant then using that beef knife chopped his left arm twice and right leg five times before running away.  There were witnesses to the attack.

3.The defendant then went to a neighbour’s home in Shin Nga House, asking to use their toilet.  He also told his neighbour that he had injured someone.  Whilst the defendant was in his neighbour’s home, she noticed police officers outside her door and invited them in.  The police arrested the defendant.

4.Under caution, he admitted he had chopped a man because that man had been following him.  That man was a stranger.  The police subsequently found in a garbage station of Fu Shin Estate that bloodstained beef knife.  The blood stain was later confirmed to match the victim’s DNA.  The police also found a rucksack containing a 30-centimetre blade, a 28-centimetre hammer and the defendant’s house keys.

The Victim’s Injuries

5.The victim was admitted into hospital that day and discharged five days later.  He sustained a 70% cut over distal portion of his right Achilles tendon, a 100% cut of right foot abductor halluces tendon, a 70% cut of left forearm flexor carpi ulnaris tendon, a 20% cut of extensor carpi ulnaris muscle, a 100% cut of his left hand abductor digiti minimi muscle, a 70% cut of his left hand palmaris brevis muscle, and a partial cut over ulnar side of capsule of metacarpal-phalangeal joint of left little finger.  

6.The victim had surgery under general anaesthetic to repair all the cut muscles and tendons as well as to stitch up the wounds.  After his discharge from hospital, he was referred to outpatient physiotherapy, occupational therapy and the Clinical Psychology Department.  He was given a sick leave certificate from 21 December 2020 to 24 January 2022 - over 13 months.  He was last seen by the Hospital Authority on 4 January 2021.  And I have a medical report dated 13 January 2021, MFI-1.  It described all his wounds and surgery and follow-up treatment.  By January 2021, there was only mild residual pain in his left hand wounds.  The movement in his fingers and toes were intact and repaired.  He was advised to continue with all the training exercises.

7.The prosecution informed the court and the defence in open court after the defendant pleaded guilty that the victim had had a conversation with the police officer in charge of his case a few days prior.  He said he still felt numbness around the wounds, was advised by the physiotherapist to continue to do the exercises required for recovery, and he was to see a psychologist again the following week.

8.I have been informed that he was a self-employed driver who had only returned to work in March this year, that is, 15 months after the attack.

Psychiatrist’s Report

9.After the defendant’s arrest and remand in custody, the court called for two psychiatric reports in light of the facts.  They are dated 11 January 2021.  The psychiatric history of the defendant is set out and describes a history of polysubstance abuse, cough mixture dependence and panic disorder.  It was suggested he was experiencing methamphetamine acute intoxication at the time of the offence.  By the time the report was prepared, he was no longer having any active psychiatric symptoms.  He was deemed mentally fit to plea, nor was a hospital order recommended at that time.  I found it prudent in light of the submissions to call for an up-to-date psychiatric report before sentencing.

10.The same psychiatrist who prepared an earlier report examined the defendant again.  He said the defendant’s mental condition was stable and he was free of persecutory beliefs or other signs of mental disturbance.  He also said, and I quote, “He is, however, of a cavalier attitude regarding the offence and his drug abuse, and has given no thought to a future plan, saying he can expect to serve still more time in prison.”  The psychiatrist has suggested the defendant continue to visit the psychiatric clinic for medication and advice.  He noted that the defendant’s mental condition in abstinence is stable but the important issue was whether he was able to stay away from drugs forever.

Mitigation

11.The defendant has just turned 38 years old and is the youngest of three siblings.  He was brought up by his mother and maternal grandmother.  His father abandoned the family when he was very young.  The defendant dropped out of school in Form 3.  When he was still young, he became acquainted with undesirable peers which led to substance and drug abuse, in particular, cough mixture abuse and the abuse of methamphetamine (‘Ice’).  He has also dabbled in other types of drugs such as ketamine, ‘Ecstasy’ and cannabis.  This has been going on for nearly 20 years.

12.The defendant has been known to the mental health service since 2008 when he was first admitted suffering from the adverse effect of substance abuse, namely, persecutory paranoia from cough mixture use.  Since then, he has been repeatedly hospitalised in psychiatric wards. The last admission was in July 2016 for panic disorder and history of polysubstance abuse.  His outpatient follow-up and attendance was erratic.  He was last seen by a psychiatrist five days before this attack and his medications adjusted.  The urine test result for that date showed he had codeine, ephedrine and ‘Ice’ in his system.

13.The defendant admits that since late November 2020, he had been abusing ‘Ice’ and cough mixture on a daily basis.  He had consumed ‘Ice’ the night before the attack and cough mixture just before the attack.  He had had paranoid thoughts a few days before the attack.  He thought he was being followed and would be harmed by triad members.  On the morning of the attack, the defendant saw the victim in the park and believed he was following him.  So he went home to get knives, hammer and a bottle of corrosive liquid.  He then, without provocation or any communication, attacked the victim in the park with the beef knife.

14.I am told in mitigation that he is now very remorseful for harming an innocent person whilst under the influence of substances and drugs.  The defendant is not a man with a clear record.  He has one previous similar conviction.  Only six months before this attack, he assaulted a security guard with a key under the influence of ‘Ice’ and was sentenced to 6 months’ imprisonment suspended for 3 years.  It has been submitted that even after that incident, he did not fully comprehend the fact that he would be prone to violence when he abused ‘Ice’ and cough mixture. 

15.Ms Lo has said all she can say on the defendant’s behalf in mitigation.  She submits that he has had an epiphany and is determined to stay away from drugs and treat his psychiatric issues to ensure he does not reoffend.  She says he is particularly concerned with the victim’s recovery and cannot apologise enough for his actions.  Despite the submissions, in my view, the only mitigating factor of any weight is his plea of guilty.

Reasons for Sentence

16.Defence counsel has taken me through a number of cases but it has been said on numerous occasions where the charge is wounding with intent, little is to be gained in embarking upon a comparative analysis of other cases.  The Court of Appeal has said time and time again that there is no sentencing tariff for this offence but the usual range would be a sentence between 3 to 12 years’ imprisonment.  Each case is different and the gravity of the offence will depend on the facts of its commission.  There is no standard kind of wounding-with-intent case.

17.A section 17 wounding offence is serious because it is committed with the intention of inflicting grievous bodily harm, that is, really serious bodily harm.  The fact that the usual range of sentences are between 3 to 12 years’ imprisonment reflects the seriousness of the offence.  I have been referred to the authority of HKSAR v Chan Chun Tat, CACC 317/2012, in particular, paragraph 49 where I quote the Court of Appeal:

“Consequently, many of the factors to which a court will have regard in determining the gravity of a section 17 offence and the culpability of the offender will relate to the type of harm intended to be inflicted, the means by which that harm was inflicted and the circumstances generally surrounding the assault. Thus, without attempting to exhaustively identify all the relevant factors, the usual ones will be the extent to which the assault was premeditated, the reasons or motivation underlying the assault upon the victim, the mental or emotional state of the assailant at the time of the assault, whether alcohol or drugs contributed to the actions of the assailant, whether the assault was committed by the assailant alone or as part of a group, the type of weapons employed, the level of force or aggression and the persistence with which the assault was pressed home, the injuries caused to the victim and the effect of the assault upon the victim and those close to him or her.”

18.The Court of Appeal went on to say that in arriving at an appropriate sentence, a sentencing court would have regard not just to the need to punish the offender but also to the sentencing principles of deterrence, both general and individual, and, in appropriate cases, the need to denounce the resort to violence.

19.Defence counsel has submitted that the defendant was suffering from psychotic complications which played a part in the commission of the offence and I should take it into account.  However, in this case, his psychiatric issues are self-inflicted.  They all stem from his voluntary prolonged substance abuse.  He cannot use this as an excuse for his actions. He was already aware that he could become violent or unable to control himself under the influence of drugs.  After all, only six months prior to this offence was he given a suspended sentence for attacking someone under the influence. That was clearly not a deterrent enough sentence.  I have little sympathy for the defendant under such circumstances.

20.I do take into account that drugs contributed to his actions; he acted alone; it was without provocation; and he used an extremely serious and debilitating weapon.  In addition, he did not strike once but many times.  The defendant hit him so hard with the beef knife that the surgeon found a 5 mm sharp metal blade foreign body in the victim’s right shin wound.  I take into account the serious injuries caused to the victim and his year-long recovery.  I am sure this unprovoked attack in this manner must have had a terrible and enduring negative effect on him and his family, both physically and mentally.

21.After considering all the mitigation I have heard and the facts of this assault, I find an appropriate starting point to be 5 years’ imprisonment.  The defendant is entitled to a one-third discount for his plea.  Accordingly, after that discount is applied, he is sentenced to 3 years and 4 months’ imprisonment.

22.The defendant is in breach of a suspended sentence.  There is no reason not to activate it.  I order he serve the 6-month sentence of FLCC 1025/2020 and serve it consecutively to today’s sentence.

23.Accordingly, the defendant is sentenced to a total of 3 years and 10 months’ imprisonment.