HKSAR v. Baldomaro Mark Gregor Galicia

DCCC 529/2021

[2022] HKDC 472

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 529 OF 2021

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REASONS FOR SENTENCE

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1.Mr Baldomaro pleaded guilty before me to two charges of Wounding with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap 212.

2.Particulars of Charge 1 are that he, on 30 January 2021, outside Star Ferry Multi-storey Car Park Public Toilet, No 9 Edinburgh Place, Central, in Hong Kong, unlawfully and maliciously wounded Fernandez Tirso Jr Castillo with intent to do him grievous bodily harm.

3.Particulars of Charge 2 are that he, on same date, at same place, unlawfully and maliciously wounded Aguilar Reginald Mendoza with intent to do him grievous bodily harm.

Facts admitted by Mr Baldomaro

4.On 30 January 2021 at about 6 pm, Filipino males FTC and ARM on exit from a public toilet in Central, saw Mr Baldomaro (who was FTC’s cousin)  about 2 metres away.  Suddenly, Mr Baldomaro approached FTC and punched him in the face, causing nosebleed.  FTC then fell down and leaned against the wall of the toilet.  Mr Baldomaro then attacked FTC’s abdomen several times with a knife. On seeing the attack on FTC, ARM pushed Mr Baldomaro away from FTC.  FTC managed to run away to his wife nearby.  FTC felt pain in his abdomen which was bleeding.  He was taken to Queen Mary Hospital by an ambulance about 20 minutes later.

5.After ARM intervened, Mr Baldomaro turned to him instead and started to punch and attack him in his left chest.  ARM stated, “Enough, enough”, but then felt a sharp pain in the left chest and he fainted.  When he came round, he found himself in a hospital.

6.Immediately after the incident, Mr Baldomaro went to his wife nearby and said he had hurt someone.  He then packed his bag and left.

7.Medical examination revealed:-

(a)  FTC was stabbed at the epigastric region and left lateral chest. Two lacerations were seen at the epigastric and left lateral flank between the 9^th and 10^th ribs. There was a 15 mm linear hypodensity at anterior aspect of spleen suggestive of splenic laceration and another 7 mm hypodense cleft at pancreatic tail suggestive of pancreatic laceration. Emergency surgery was immediately conducted. FTC was discharged on 4 February 2021; and

(b)  ARM suffered penetrating left chest injury. An emergency operative exploration was performed on 30 January 2021: 4 cm anterior stab wound under the left nipple with sharp cut skin edges and active wound bleeding. Underlying costocartilage also cut and divided. Bleeding from intercostal branches from left internal mammary artery. Anterior pericardium was cut open by the penetrating object resulting in a 1 cm anterior right ventricle wall laceration near the acute margin of the heart adjacent to the left anterior descending artery. ARM was discharged 10 days later (9 February 2021).

8.Mr Baldomaro surrendered himself at Central Police Station on the day following the incident.  During a VRI, he said under caution:-

(a)  At around 6:30 pm on 30 January 2021, he was going to use the said toilet. He saw FTC, whose grandmother and his own grandmother were sisters, come out of the toilet with another person. FTC had badmouthed him and his wife before, and he felt angry when he saw FTC. He punched FTC in the face, and then took out a folding knife of about 2 inches long. He stabbed FTC in the lower left abdomen; and

(b)  He knew what he did was wrong and he regretted it.

9.Mr Baldomaro now admits he stabbed and wounded FTC and ARM with intent to do them grievous bodily harm.

Criminal record

10.Mr Baldomaro has a clear record.

Antecedents

11.Mr Baldomaro is aged 36 (35 at the time of the offences), born and received secondary education in the Philippines, was working as a foreign domestic driver in Hong Kong.  He is married.

Mitigation

12.Ms Vanessa Ho of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Baldomaro.  The following is a summary of the mitigation submissions.

13.Mr Baldomaro and PW1 are cousins.  They, and Mrs Baldomaro and other relatives all worked for the same employer up until 2016.

14.In or about 2014, FTC began gossiping about Mrs Baldomaro.  From time to time, FTC would inform and/or hint to Mr Baldomaro that his wife was having an affair with others (“the Rumour”).  FTC had even said to him that his wife was having an affair with FTC.  This caused Mr Baldomaro much anxiety and led to many arguments with his wife.  The Rumour continued to cause much marital problems between Mr Baldomaro and his wife; and the embarrassment was worsened when the Rumour spread to their mutual Filipino community in Hong Kong as well as to the Philippines.

15.In 2015, Mr Baldomaro quickly became depressed.  In 2016, Mr Baldomaro was diagnosed with delusional disorder and was given medication (medical report dated 18 October 2021 submitted).

16.As a result, Mr Baldomaro and his wife also made the decision to distance themselves from FTC and found new employment in 2016.  Mr Baldomaro continued to visit private doctors from time to time for depression.

17.At the beginning of January 2021, FTC suddenly contacted Mr Baldomaro and revealed to him that the Rumour was simply just a joke; and made a mockery out of Mr Baldomaro.  Mr Baldomaro was in total shock over this revelation and cut off all ties with FTC.

18.Since 2016, Mr Baldomaro has always taken precautions to avoid FTC as he wanted nothing to do with him.  Mr Baldomaro would make sure to avoid taking his holiday in the same area as FTC.

19.On the night of the incident, Mr Baldomaro was on holiday with his friends and wife at Central pier.  Like many domestic helpers on their holiday, Mr Baldomaro would bring many items to picnic outdoors such as utensils, food, drinks and alcohol to enjoy alongside with their friends.  The folded knife was amongst those items, intended to be used for cutting fruit and packaging etc and not for the purpose of attacking another person.

20.Mr Baldomaro was unaware that FTC was in the area and Mr Baldomaro was shocked to see FTC walk out of the Public Toilet.  Mr Baldomaro was overtaken by his sudden emotions.

21.Mr Baldomaro is now aged 36 and has a clear record in Hong Kong and elsewhere in the world.  He has not been involved with any criminal investigation, violence related or not.

22.Mr Baldomaro came to Hong Kong in 2010 along with his wife to work hard to support his family back in the Philippines.  The couple have been married since 2004 (18 years).  They have 2 sons (18 and 13).

23.It is submitted that Mr Baldomaro acted out of character as shown by his clear record.  It is submitted that alcohol and depression played an influential part in his sudden actions of violence.

24.The court is asked to accept that Mr Baldomaro is remorseful for this one-off impulsive violent act, that there was no premeditation involved and Mr Baldomaro acted in a momentary loss of reason.  Mr Baldomaro’s remorse is reflected in his own surrender to the Central Police Station and his admissions under caution.

25.The court is urged to accept this case is an unusual one with special circumstances which deserves a relatively lenient sentence for a serious offence as this.

26.Ms Ho referred to two authorities namely, Secretary for Justice v Hau Ping Chuen [2008] 3 HKC 398, and HKSAR v Wong Luk Sau, CACC 2/2012.

27.Ms Ho submitted 3 mitigation letters all written in English respectively by Mrs Baldomaro, the ex-employer, and lastly the current employer of Mr Baldomaro.  Contents are generally that although Mr Baldomaro had depression issues in the past, it was not the reason for which he hurt others; that Mr Baldomaro would like to apologize to the victims; that he will learn to hold his temper; that Mr Baldomaro has been a decent, well-mannered, honest, diligent, caring and reliable employee.

28.Ms Ho added by oral submissions that there were no permanent injuries to the victims; that Mrs Baldomaro and other relatives and friends are in court to give their support; that Mr Baldomaro’s medical visits even to private doctors stopped in 2016; that the call contact supposedly made by FTC to Mr Baldomaro in the beginning of January 2021 was in fact made by a friend Lawrence on behalf of FTC; that in the VRI, Mr Baldomaro revealed to the police that he had taken 4 cans of beer prior to the attacks; that Mr Baldomaro was not aiming at any particular parts of the victims’ bodies; that the knife landed where it did only because things happened quickly.

29.Finally, Ms Ho indicated that Mr Baldomaro will not give evidence to support his version of the background to the attack on FTC.

Sentence

30.The maximum penalty for a Wounding 17 offence is life imprisonment.  The usual sentence is between 3 and 12 years’ imprisonment although there is no tariff as such simply because the circumstances of the offence and offender could vary enormously from one case to another.  References to previous sentences in other cases therefore provided limited assistance.

31.I have had regard to the two cases cited by Ms Ho.

32.A passage in HKSAR v Chan Chun Tat [2013] 6 HKC 225 is particularly apt here in identifying the aggravating features in this case, at paras 49 and 50 (part)  at 236F-237A:-

“49. … many of the factors to which a court will have regard in determining the gravity of a s 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 identi[f]y 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.

50. In arriving at an appropriate sentence the court will have regard not just to the need to punish the offender for his conduct, but also to the sentencing principles of deterrence, both general and individual, and, in appropriate cases, the need to denounce the resort to violence…”

33.In this case, the offence is aggravated by the following factors:-

(a)  the fact of multiple victims;

(b)  the attacks were unprovoked;

(c)  the use of a sharp weapon on defenceless victims;

(d)  the commission of the offences in a public place;

(e)  from the position of the wounds on the victims, it can be inferred that Mr Baldomaro was aiming at the heart in the case of ARM and at other important organs of the body in the case of FTC; and

(f)  after FTC fell with a bloody nose after the initial punch, Mr Baldomaro still chose to upgrade the attack with a knife.

34.Judging from the time the two victims stayed in a hospital, and with a lack of prognosis of their conditions, the extent of the actual harm caused to them might have been limited.

35.For a serious offence such as the present, the offender’s previous clear record carries little weight.

36.Although the attacks appear to be unpremeditated, I take the attribution therefor to previous dealings with FTC with a pinch of salt.  The alleged taunting about Mrs Baldomaro took place in 2014-2016.  The matter should have ended in 2016.  I found it unbelievable that Mr Baldomaro’s emotions could have been re-ignited by a chance telephone encounter with someone who spoke on behalf of FTC in the beginning of the month in which the offences occurred.

37.However, I accept that Mr Baldomaro could have been slightly affected by the presence of some alcohol in his bloodstream at the time of the attack and I will adjust the starting point accordingly.

38.All things considered, I adopt a starting point of 3 years 3 months’ imprisonment for each charge.

39.Mr Baldomaro pleaded guilty in good time for which he will be given a discount of 1/3 off the starting point.  I can see no other mitigating factors of weight to justify any further reduction in sentence.

40.Although the two offences took place at practically the same time and same place, two victims were involved and it would be wrong to impose wholly concurrent sentences.  Particularly on an application of the totality principle, I will impose partially concurrent sentences.

(Mr Baldomaro, please stand)

41.For Charge 1, Mr Baldomaro will go to prison for 2 years and 2 months.

42.For Charge 2, Mr Baldomaro will go to prison for 2 years and 2 months.

43.I order that one year of the sentence on Charge 2 do run consecutively to the sentence on Charge 1, making an aggregate imprisonment term of 3 years and 2 months.