HKSAR v. Da Silva Santos Alexandro

DCCC 1009/2021

[2023] HKDC 455

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1009 OF 2021

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REASONS FOR SENTENCE

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1.The defendant was convicted of one count of wounding with intent after trial. (Charge 1)

Background

2.The court sought a background report before sentencing the defendant. According to the background report and information provided by the prosecution, the defendant was born in Brazil. He is 37 years old and lives with his wife whom he married in 2020.

3.The defendant joined a football club as a trainee after leaving school at grade 7 and became a football player in Brazil. He had been invited to play for various clubs including the Citizen Football Club in Hong Kong from 2007 to 2011. Thereafter he played football in Europe, India and Vietnam. In 2020, he returned to Hong Kong to play for Citizen Football Club in 2020. He also worked as a fitness coach and a football coach for children. He earned about HK$10,000 to HK$20,000 per month.

4.The defendant was of clear record at the time of the present offence.

Mitigation

5.In mitigation, it was submitted that the defendant is remorseful, he realised that he could have but chose not to leave the Building. The defendant’s action was provoked by the incident at the bar. It was suggested that this was an exceptional case as the victim had assaulted the defendant prior to the assault on the victim by the defendant.

6.It was submitted that the defendant’s wife and family are supportive of the defendant, and the defendant wished to be re-united with his family.

7.Two letters of mitigation written by the defendant’s wife and his friends were submitted to the court. The defendant’s wife described him as gentle and kind, and his friends claimed that he is a non-violent and trustworthy person.

Sentencing

8.Wounding with intent is a very serious offence which carries a maximum life imprisonment term. There is no sentencing guideline and sentencing is case specific. While the usual range of sentence is from 3 to 12 years’ imprisonment, authorities have indicated that where circumstances of the case warranted, higher or lower sentences than the usual range might be considered by the court: HKSAR v Tse Hok Lam [2005] 3 HKLRD 18.

9.Counsel for the defence submitted 7 authorities including District Court decisions, I have considered them.

10.In HKSAR v Chan Chun Tat [2013] 6 HKC 225, the Court of Appeal provided that “wounding with intent” is a serious offence that warranted a deterrent sentence and set out the major sentencing considerations:

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

(b)  the motivation underlying the assault;

(c)  the mental or emotional state of the assailant;

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

(e)  the type of weapons employed;

(f)  the level of force used;

(g)  the injuries caused to the victim;

(h)  the effect of the assault upon the victim (and those close to him or her)

11.In the present case, the defendant, victim and other men were engaged in a brawl inside a bar. The defendant fled the bar. He was chased and caught by 2 men at the staircase, the men let him leave without further incident. The defendant had reached the exit of the Building and he decided not to leave but to return with a metal rod to attack the victim.

12.The defence suggested that the defendant picked up the metal rod and walked around the building randomly without any intention at that juncture to attack the victim. It was only a chance encounter with the victim that he formed the intent to attack the victim.

13.The defendant chose not to leave the Building when he had the opportunity. He chose to pick up a metal rod, he did not attack other men only the victim. I do not accept that he only attacked the victim in a chance encounter.

14.However, I accept that the defendant could not have anticipated his encounter with the victim, to the extent where he could locate the victim. Although the defendant did return to attack the victim, having considered the short period within which the incidents occurred, I accept that the extent to which the assault was premeditated was not significant.

15.The type of weapon used by the defendant was metal rod. On examination, it was a thin metal rod. The defendant struck at the victim more than once and was immediately pushed away and out of the corridor by the victim and other men present at the time. I have considered the injuries suffered by the victim. According to the medical report, the victim suffered a 3 cm laceration that required suture. The victim has recovered and did not suffer any permanent injuries. The injuries suffered by the victim was not the most serious kind.

16.I accept the defence’s submission that it was an isolated incident, the defendant acted alone. The CCTV evidence showed that he was involved in a fight with the victim and other men at the bar and had sustained injuries. The defendant was of clear record at the time of the offence, and had led a law-abiding life as a professional footballer, as well as coaching children. This case will not doubt have a serious consequence to his career.

17.I have considered the circumstances of the case, I consider it to be of the lower spectrum of seriousness. I have considered the defendant’s background, submissions in mitigation and this case being an isolated incident. I sentence the defendant to 12 months’ imprisonment.