HKSAR v. Nalbo Krishna Kumar

DCCC 642/2021

[2022] HKDC 887

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 642 OF 2021

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REASONS FOR SENTENCE

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1.The defendant has been convicted after trial of one charge of wounding with intent, contrary to section 17(a)  of the Offences Against the Person Ordinance, Chapter 212.

The background and the facts

2.I have detailed the facts of the case when giving my verdict and I will not repeat all the facts here.  To put it shortly, the defendant and the victim, PW1, were a married couple living together at Room 2108 Siu Lok House, Siu Hong Court, Tuen Mun in the New Territories (hereinafter referred to as “the Premises” at the time of the attack.  Shortly before 10:00 pm on the evening of 18 March 2021, the defendant came home while PW1 was in the kitchen cutting vegetables with a chopper.  PW1 asked the defendant why he came home early.  The defendant suddenly got angry and talked to her very loudly by saying the words to the effect “Why did you ask me this question? I can come back anytime I want”.  PW1 then responded by saying to the defendant the words to the effect “I am your wife and I have a right to ask”.  A quarrel between the two then ensued.  PW1 came out from the kitchen and sat on the sofa in the living room to watch television while the quarrel was continuing.  During the quarrel, PW1 noticed the smell of alcohol coming from the defendant.  He continued to talk to PW1 angrily and blaming her for asking him such a question. While PW1 was still sitting on the sofa, the defendant suddenly hit PW1 on the head with a sharp object, causing about a 5-centimetre laceration requiring seven stitches. 

3.Immediately after PW1 was hit, the defendant went into the bedroom and then came out quickly.  Subsequently he fled from the Premises.  As PW1’s head was bleeding, she used both hands to cover her head and try to chase after the defendant, but she could not succeed.  She finally alerted the security guard of Siu Lok House on the ground floor lobby and was later sent to Tuen Mun Hospital for medical treatment. 

4.The chopper was seized on 18 March 2021 by DPC28330 from the top of the wardrobe in the bedroom belonging to PW1 and the defendant inside the Premises. It was later examined by the Government Chemist and found to have no traces of blood on the blade or handle.  

5.I found the irresistible inference is that the defendant hit PW1 on the head with a sharp object causing about a 5-centimetre laceration requiring seven stitches and I also found the defendant wounded PW1 with intent to do her grievous bodily harm. 

Personal background and mitigation

6.Given the relationship between PW1 and the defendant and also the fact that the defendant had a clear record, I decided to call for a background report on the defendant remanding him in custody.  I have before me now the background report dated 9 August 2022 prepared by the interviewing Probation officer.  I have considered the contents of the report before sentencing.  I understand from Mr Littlewood who appears for the defendant that it has been explained to him and he accepts the contents of the report. 

7.The defendant was born in Nepal and is now aged 56.  He has been educated up to Primary 5 level and then assisted his family in farming.  He met PW1 in a village in Nepal and they registered their marriage in Nepal right after they got to know each other in 1990.  PW1, aged 63, a Nepali born in Hong Kong, is seven years older than him.  Two sons were born in their wedlock and they are now aged 30 and 26.  Their elder son has moved to United Kingdom to join the army in 2019.  He is now married and living with his family in the United Kingdom.  Their younger son is single and became unemployed since 2019.

8.Upon the application of PW1, the defendant immigrated to Hong Kong in 2004.  He firstly worked in the construction site and turned to be a security guard a few months later.  He stayed in the job as a security guard for more than four years.  He resumed to work as a construction worker in 2009 and stayed in the career until he was remanded.  He earned about HK$25,000 a month on average and the monthly income could be up to HK$35,000 if there was overtime work.  The defendant gave his bankcard to PW1 who was responsible for paying family expenses.  She gave HK$15,000 to the defendant per month as pocket money.

9.The background report disclosed that the defendant and PW1 started having conflicts a few years after they got married when their children were born.  The conflicts were about trivial matters in daily life, instead of any major issues like extra-marital affair or money.  The defendant said in 2016, there was a serious conflict between him and PW1.  He had a trip to visit his family in Nepal but PW1 did not join the trip even after the purchase of the air ticket.  He viewed that PW1 failed to do a good job as a wife and as a mother.  It was always PW1 who stirred up conflicts from time to time throughout the years.

10.The defendant told the Probation officer that around 2012, PW1 developed a drinking habit.  Although she did not drink regularly, she would get drunk after drinking.  It affected her in looking after the family and taking care of their younger son when he was still a teenage boy at that time.  When enquired about his drinking history, the defendant said he started drinking beer when he was about the age of 30.  He drank two to three times a week after work and each time he consumed three to four cans of beer.  He claimed that he would not get drunk and denied he was addicted to alcohol.

11.The background report also disclosed that the defendant gave a similar version as to what had happened on the material day.  He said PW1 raised her hands and acted like threatening him or attacking him.  He then left.  He said he only stayed in the house for less than 10 minutes and there was no argument between them.  He asserted that when he went out, PW1 was not injured.  He could not tell why her head was injured.  He did not understand why she told the police that she was hit by him.  He speculated that she accused him because they had disputes over the property jointly owned by them.

12.Mr Littlewood submitted in mitigation that the defendant and PW1 had been married for many years.  It was submitted that PW1 gave evidence without any particular bitterness towards the defendant, and she did not speak of any prior incident of violence.  It appeared to be a momentary burst of anger. 

13.Mr Littlewood said the court now finds the defendant to have hit the victim by using a sharp object rather than using a chopper.  He urged the court to accept that the use of a sharp object was in fact less serious in nature when compared with the use of a chopper.  He suggested a sharp object could be anything such as a box with a sharp edge which was still able to cause the same injury sustained by the victim.  It was said that if the chopper was used, it would no doubt be the aggravating feature causing fatal injuries on the victim.

14.It was submitted that the defendant had enjoyed a long marriage with two children with no prior history of anything similar occurring between them.  The offence did not appear premeditated, rather spontaneous, as the result of a domestic argument.  It appears to be entirely out of character.  The defendant is now separated from his wife and is unlikely to re-offend.

Sentencing considerations

15.The maximum sentence for the offence of wounding with intent is that of life imprisonment.  The Court of Appeal has said time and time again that there is a no sentencing tariff for this offence but the usual range would be a sentence between 3 to 12 years’ imprisonment.  For a person of clear record who pleads not guilty and is convicted after trial, there can be a sentence of between 3 to 12 years’ imprisonment.  There are also cases where a lower sentence has been held appropriate.  Each case is to be decided on its own facts and circumstances. 

16.Mr Littlewood has very helpfully referred me to the case of HKSAR v Chan Chun Tat (陳駿達), [2013] 6 HKC 225.  In that case, the Court of Appeal in that case identified factors to which a court will have regard in determining the gravity of a section 17 offence, especially in the context of domestic violence:-  

“49. 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 attending 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.

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. Of course deterrence and the denunciation are always important when there is resort to violence but there may be particular situations that call for greater deterrence, such as in triad gang or contract attacks, or more denunciatory sentences, such as in domestic violence cases.

51. In respect of the latter type of case the courts have long played a role in denouncing a resort to violence. People living together, whether they are husband and wife, parent and child or in any other relationship, inevitably suffer stresses from their work or personal life which may manifest themselves within the home environment in arguments or emotional outbursts. How people, within the privacy of their homes, resolve their problems is not usually a matter that concerns the courts; but the moment the law is broken by a resort to violence in order to solve such problems then the courts will become involved. By their sentences the courts must make clear that violence will never be regarded as an acceptable way of dealing with personal issues”.

17.Turning back to the present case, weapon was used in this case, albeit the nature of the sharp object is unknown, but suffice for me to say that it is capable of causing serious injury.  When considering the appropriate sentence for this case I cannot lose sight of the serious nature of the case in that the sharp object as the weapon was used and the attack was effected with such an object upon a highly vulnerable part of PW1’s body.  It was directed to the region of her head and the infliction of the hit using the sharp object to her head of course could have resulted in very serious injuries.  It is to be remembered as well that this was an attack visited upon PW1 who was watching television in the living room at the time of the attack.  The attack was so sudden and launched on her who did not even have sufficient time to notice what she was hit with.  She was at the time completely defenceless.  She sustained a 5- centimetre laceration over her scalp which required suturing with seven stitches as a result of the attack and stayed in the hospital for about five days.  I must say that it is only fortunate that she did not suffer more serious or long-lasting injuries.

18.When the Probation officer asked him about this offence, the defendant maintained his innocence and insisted that he did not hit PW1.  He had no idea why she was injured. 

19.I have taken into account the defendant’s background and mitigation put forward on his behalf.  The defendant was of clear record prior to this offence and had no history of violence.  PW1 was hit only once on the head without persistence or repetition.  I accept the attack was not a sustained one.  I accept Mr Littlewood’s submission that the attack by the defendant was not premeditated but occurred on the spur of the moment. 

20.As revealed from the medical reports, there was no other wound found on PW1 and no focal neurological sign elicited.  Computer tomography of brain showed no fracture and no intracranial haemorrhage.  I accept that PW1 appeared to have recovered well from her injury with no permanent damage.

21.Now the present case was the one involving domestic violence.  As rightly pointed out in mitigation that the facts were serious, and the courts take a serious view of domestic violence.  Deterrent sentences are required not only to deter the individual but also to deter those persons like-minded to use violence to resolve domestic disputes.  It is no doubt clear that for this type of domestic violence case an immediate sentence of imprisonment is the only appropriate sentence.

22.Having considered all that was said on behalf of the defendant and his background, and having taken into account the facts of this case, including the circumstances which led to the attack, the weapon used, the injury sustained by PW1, as well as the fact that she has fully recovered from her injury, I am of the view that the starting point of two and a half years is appropriate in this case.  Having been convicted after trial, the defendant is not entitled to the discount available on the plea of guilty.  Therefore, the defendant is sentenced to two and a half years’ imprisonment.