HKSAR v. Limbu Sangam

DCCC 750/2022

[2023] HKDC 761

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 750 OF 2022

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of wounding with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap. 212.

Facts

2.Full particulars of the offence are set out in the Amended Summary of Facts dated 25 May 2023 admitted by the defendant.

3.In summary, the defendant was a chef working in the restaurant as particularized in the charge.  On 29 April 2022, Mr. Kong Tung Yiu Eric and his colleagues were dinning at the restaurant.  Then, Mr. Kong went to one of the cubicles in the washroom.  When Mr. Kong exited from the cubicle, he saw the defendant standing in front of him and blocked his path to the basin.  The defendant was holding a chopper in his right hand above his head.  Suddenly, the defendant struck Mr. Kong’s head without warning at least twice at the left side of Mr. Kong’s ear and cheek.  Mr. Kong grabbed the defendant’s right wrist to stop him from striking.  They struggled with each other.  Mr. Kong shouted for help.  One of Mr. Kong’s colleagues and the supervisor of the restaurant came to assist.  After some struggle, the defendant fell onto the ground and the chopper was taken away to the kitchen area. 

4.A report was made and the defendant was arrested.  Part of the incident was captured by the CCTV of the restaurant.

5.Mr. Kong sustained a 7cm laceration at the left ear lobe extending to his lower face.  He received 19 stitches at his left ear.  He was discharged the same day[1]. It was confirmed that Mr. Kong has made a full recovery with no permanent disability.

Mitigation

6.The defendant is aged 23.  He was born in Nepal.  His father passed away when he was young.  He came to Hong Kong with his mother in about 2016.  He lived with his mother until his mother returned to Nepal in 2018 for medical treatment.  His stepfather has also been receiving treatment for knee pain and eye problems in Nepal since 2020.  Prior to the arrest, he was working as a chef and was the sole breadwinner of the family.  He has a clear record in Hong Kong.

7.In mitigation, it was submitted that both Mr. Kong and the defendant went to the washroom at about the same time.  When the defendant was inside the washroom, he heard racial slur targeted against him.  He believed that whoever in the other cubicle was the person being disrespectful.  As a result, the defendant lost control and ended up attacking Mr. Kong with the chopper.  It was accepted that the defendant and Mr. Kong were strangers to each other and they had no interaction before their encounter in the washroom.  It was further accepted that the defendant was reckless in not checking the identity of the person who said the racial slur.  It was submitted that the attack was not premeditated but happened on the spur of the moment, it was not triad related and it was a one-off incident with the defendant acting alone.  The chopper was a tool easily found in the kitchen and thus was a weapon of opportunity.

8.It was further submitted that at the time of the offence, the defendant was staying in Hong Kong alone with his parents receiving medical treatment in Nepal, he was under stress while taking up the responsibility as the sole breadwinner of the family.

9.It was also submitted that the defendant has contributed to the Hong Kong Nepalese Federation by being an active member of one of the active organisation of the Federation.  He is a kind person and the chance of re-offending is low.  With reference to authorities[2], the defence urged this Court to impose a lenient sentence on the defendant.

Sentence

10.In passing sentence, I have considered the background information about the defendant, his mitigation and his clear record.

11.There are no sentencing guidelines for the offence.  In HKSAR v Hau Ping Chuen [2008] 4 HKLRD 673, the Court of Appeal referred to the usual range of sentence for wounding with intent being 3-12 years.

12.In HKSAR v Chan Chun Tat, CACC 317/2012, the Court of Appeal listed a number of relevant factors to be considered in determining the gravity of the offence and the culpability of the offender:

(1)  the extent to which the assault was premeditated;

(2)  the reasons or motivation underlying the assault upon the victim;

(3)  the mental or emotional state of the assailant at the time of the assault;

(4)  whether alcohol or drugs contributed to the actions of the assailant;

(5)  whether the assault was committed by the assailant alone or a part of a group;

(6)  the type of weapons employed;

(7)  the level of force or aggression and the persistence with which the assault was pressed home;

(8)  the injuries caused to the victim; and

(9)  the effect of the assault upon the victim and those close to the victim.

13.In Secretary for Justice v Hung Kar Chun [2011] 1 HKLRD 1083, the Court of Appeal said the courts would not tolerate attacking another person with a lethal weapon such as a chopper or knife on minor provocation or while having a dispute, and that the court would, in dealing with this kind of case, impose more severe punishment as a deterrence.

14.It was confirmed that the defendant was not relying on provocation as a mitigating factor as the defendant was not sure if the racial slur came from Mr. Kong.  In the circumstances, the attack was unprovoked.

15.Given the defendant and the victim did not know each other before the incident and that the chopper is a tool easily found in the kitchen area, I accept the attack was not premediated.

16.Regarding the case of Chan Bo Hung relied by the defence, that is a case for sentence in the District Court.  That case is not binding on me. Further, the facts of the attack and the circumstances of the defendant of that case is different from the present case.  I do not consider this to be a suitable case for reference.    

17.Having considered carefully all the circumstances of the present case, including the defendant’s clear record, the attack was unprovoked, a chopper was used, the nature of the injury sustained by Mr. Kong and that he has made a full recovery, I am satisfied that the proper starting point is 3 years and 3 months’ imprisonment.  Given the defendant’s plea of guilty, he is entitled to the usual 1/3 discount and the sentence is reduced to 2 years and 2 months’ imprisonment.  Having considered the defendant being a young adult taking up the responsibility of supporting the family by staying in Hong Kong alone while worrying about the health of his parents, I am prepared to exercise my discretion and grant him a further discount of 2 months.  Therefore, the sentence is reduced to 2 years’ imprisonment.