HKSAR v. Lockyer Robert Kenneth

DCCC 554/2022

[2023] HKDC 745

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 554 OF 2022

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REASONS FOR SENTENCE

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Background

1.Upon the defendant’s guilty plea and admission of facts, the defendant (“D”)  was convicted with 4 charges, i.e. Charge 1 to 3 were common assault, contrary to Common Law and punishable under section 40 of the Offences against the Person Ordinance, Cap. 212 and Charge 4 was wounding with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap 212. 

Charge 1 - Common Assault

2.At around 4:00 a.m. on 15 December 2021, D approached Mr. GUEDES (“PW1”)  outside “Ebeneezer’s Kebabs & Pizzeria”, Shop No. 5, Ground Floor, No. 89 Lockhart Road, Wan Chai (the “Location”)  and accused him of looking at his girlfriend.  A dispute between them ensued, during which D punched PW1’s face 4 times with both hands and PW1 fell to the ground.

Charge 2 and 3 – Common Assault

3.PW1’s acquaintance, Mr. MARSHALL (“PW2”)  happened to walk past and asked PW1 what happened.  PW1 and PW2 left the Location and walked along Lockhart Road until they reached a cable room at No. 77 Lockhart Road.  Shortly afterwards, D appeared and dashed towards PW1 and PW2.  D punched PW2’s shoulder and upper body 2 to 3 times with both hands.  D also punched PW1’s face about 4 times.

Charge 4 – Wounding with Intent

4.D then walked away from the scene, but returned very shortly with a 4-foot long wooden stick.  There were two sharp nails protruding from the end of the stick.  D held up the stick with both hands and swung it down to hit the back of PW2’s head for around 3 times.  PW2 fell to the ground and was bleeding. PW2 felt dizzy and fainted.  PW1 struggled with D and both fell onto the ground as well.  Officers soon arrived and subdued D.

5.Upon police arrival, PW1 saw D’s girlfriend picking up the wooden stick, walking to the junction of Luard Road and Lockhart Road, and dropped the wooden stick. The wooden stick was later seized thereat.

6.D was arrested on the same day.  A cautioned video-recorded interview was conducted with D on 16 December 2021 during which D remained silent when asked about the offences.

7.PW1 and PW2 were admitted to the Department of Accident and Emergency of Queen Mary Hospital.  PW1 sustained redness, tenderness and swelling on his right face. PW2 sustained a 6 cm laceration at scalp with hematoma underneath and active bleeding.  He suffered from tenderness and mild swelling at both wrists and hands region.  An abrasion was noted at his left upper back region.  Urgent suturing was done for the scalp for hemostasis.  X-rays of hands and wrists showed fractured right distal radius.  His fractured radius was assessed by orthopaedic surgeon and a slab was applied.  PW2 was discharged from the hospital on 16 December 2021.

8.D now accepts and admits that at the material time:

(a)  D had assaulted PW1 (Charge 1 and Charge 3)  and PW2 (Charge 2); and

(b)  D had unlawfully and maliciously wounded PW2 with intent to do him grievous bodily harm (Charge 4).

Defendant’s Background

9.The defendant is an Australian male.  He was born in 1969, now aged 54, with a Hong Kong identity card.  He has four previous records of violence-related offence of resisting police officers and possession of offensive weapon for which he received a total of 12 months’ imprisonment in 2019. 

Mitigation

10.Mr Richmond submitted a detailed written mitigation on behalf of the defendant.  On the defendant’s background, the defence submitted that the defendant came to Hong Kong in 2013.  He obtained a PHD in wildlife conservation in 2013.  Since 2016, he has been working for a foundation and promoting conservation projects in various regions of the world. 

11.He got married in 2013 but the marriage was ended with a 9-year-old daughter resident in Hong Kong.   

12.Regarding his culpability, Mr Richmond submitted that the defendant suffers from Bipolar Affective Disorder. The defendant also consumed alcohol before the incidents. Since February 2022, he has consulted a private doctor.  The doctor opined that continued psychiatric treatment should continue.  Mr Richmond at first suggested to obtain a psychiatric report before sentencing.  Having considered the medical reports submitted by the defence, in particular, it gave me an overview of the defendant’s medical history and the fact that defendant has consulted private doctor, it is unlikely that I may order hospital order.  Mr Richmond clarified that it may not be necessary for the court to call for separate psychiatric report before sentence.   

13.The defence also cited a few authorities and the outcome of those cases seem to suggest a starting point of two and a half to three years of imprisonment.  The defence urged the court to consider 3 years starting point for Charge 4 and one month for each of Charges 1 to 3, and to order them to run concurrently. 

Discussion & Sentence

14.Charge 4 is wounding with intent under section 17(a)  of Chapter 212, which is a serious offence and carrying a maximum penalty of life imprisonment.  Sentencing of which is nevertheless very much case specific and there is no sentencing tariff.  The maximum sentence for common assault is one year’s imprisonment and there is likewise no sentencing tariff. 

15.In Secretary for Justice v Hau Ping Chuen [2008] 3 HKC 398, the Court of Appeal was referred to an earlier judgment, in HKSAR v Tse Hok Lam [2005] HKLRD 344, where the usual range of sentence is described as being 3 to 12 years’ imprisonment.  Of course this is not to say that there may not be offences under section 17 which call for higher or lower sentences than the usual range described in Tse Hok Lam.  If the circumstances are so unusual that they might merit sentences above or below the usual bracket (see paragraphs 15 and 16 of the judgment). 

16.The same sentencing principle was reiterated in a more recent Court of Appeal decision in HKSAR v Wong Luk Sau CACC 2/2012, it was stated in particular in paragraphs 17 and 18 of the judgment that the range of 3 to 12 years’ imprisonment is not a sentencing tariff and the circumstances of the offence and the background of the offenders differ from case to case.  Other decided cases are of limited reference value. 

17.The same point is echoed and further elaborated in another more recent authority in HKSAR v Chan Chun Tat [2013] 6 HKC 225, the Court of Appeal stated that little is to be gained in embarking upon a comparative analysis of other cases.  The factor of primary importance is the intent of the assailant to cause the victim really serious bodily harm.  This is why even though the consequences to the victim will always be an important factor, the gravity of the offence lies in the deliberate resort to violence with the intent by the offender to inflict by violence really serious harm on the victim (see paragraphs 45 and 48 of the judgment). 

18.Also in paragraph 49 of the judgment, the Court of Appeal listed a number of usual factors in determining the gravity of a section 17 offence.  For instance the extent to which the assault was premeditated, the reasons or motivations underlying the assault, 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 is 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. 

19.In my view, this case is not the worst or the most serious type.  As contended by the defence, it involved no premeditation.  That said, the attack was unprovoked and arose out of the defendant accusing PW1 looking at his girlfriend.   Other aggravating features include (i)  there were two victims; (ii)  the defendant attacked PW2 with weapon.  The weapon is a 4-foot long wooden stick with two sharp nails protruding from the end; (iii)  the attacks must have resulted in the victims’ immediate pain and suffering; (iv)  the incidents happened in a public place in front of the defendant’s friend just because of a trivial stare; (v)  he had violence related criminal record in 2019.  The case became more serious when I took into account the fact that after punching PW1, the defendant continued to pursue and “dashed towards PW1 and PW2” with the wooden stick. 

20.PW1 sustained redness, tenderness and swelling on his right face.  PW2 sustained a 6cm laceration at scalp with hematoma underneath and active bleeding.  Suturing was done for the scalp injury.  Both PW1 and PW2 were either discharged from hospital on the same day or next day of the incidents.  The prosecution confirmed that the victim appeared to be recovering well and there is no medical complication arising out of the incident. 

21.In any event, as said in the earlier authority in Chan Chun Tat, the consequences to the victim though an important factor, the gravity of the offence lies in the intent of the defendant to cause really serious harm on the victim. 

22.In my view, it is obvious that the defendant did intend to inflict really serious harm on the victim in the circumstances of the case as it was not a single strike but a continuing attack. 

23.I accept that the defendant is now remorseful for his impulsive violent acts as indicated by his guilty plea.  I also accept that he committed this offence because of his narrowmindedness, he was acting alone and without any premeditation. 

24.Nevertheless, as said, there were serious aspects in this case where there were repeated attacks of the victims, including PW2’s head region, that a wooden stick with two sharp nails has been used as a weapon and that all were done in a public place.  Consuming alcohol voluntarily and committed serious violent offence deserve little sympathy, especially the defendant knew he has bipolar disorder.  That said, main stream idea from decided cases suggest a proportional reduction may be considered.   

25.Having considered all the circumstances of the case and those of the defendant, I am prepared to adopt a starting point of 3 years or 36 months’ imprisonment for Charge 4, and 6 weeks for each of Charges 1 to 3 respectively. 

26.The defendant should be given a full one-third discount for his timely plea of guilty.  This results in 24 months’ imprisonment for Charge 4 and 4 weeks’ imprisonment for each of Charges 1 to 3. 

27.I accept that all charges happened in part and parcel way and the relevant facts are overlapping, and also to avoid excessive sentence, I order all sentence to run concurrently.  So the final sentence is 24 months’ imprisonment, and I so order.  Should the defendant require medical and mental illness treatment, the defendant will be able to access to timely medical treatment. 

28.I am grateful for parties’ able assistance.