HKSAR v. Yu Yat Sang

DCCC825/ 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.825 OF 2009

Reasons for Sentence

1.The defendant faces one charge of wounding with intent contrary to s.17 of the Offences Against the Person Ordinance, Cap.212, and one charge of wounding contrary to s.19 of the same Ordinance. The defendant at first pleaded not guilty to both charges and since the prosecution based their case solely on the cautioned statements of the defendant, a voir dire was held to determine the admissibility of the statement. Upon my ruling that the defendant had voluntarily taken part in the interview and had given his answers voluntarily, the defendant asked for plea to be taken again and he pleaded guilty to both charge 1 and 2, and admitted to the summary of facts prepared by the prosecution. The defendant was duly convicted. I then called for a psychologist’s report and a background report pending sentence.

Background of the case

2.Police officers were summoned to the pier of Tai Po Wholesale Fish Market at around 00:41am on 7th July 2009. Pw1 arrived at around 00:47am and found 2 injured males on a fishing vessel that was berthed at the pier. He made some preliminary inquiries and learnt that an attack had happened. Pw1 found the defendant floating in the sea and told him to come up. Upon coming out of the sea, the defendant said that he had injured the 2 males. The defendant was arrested and cautioned. Under caution he said words to the effect that he chopped the 2 men out of anger. The defendant was brought back to Tai Po Police Station where pw1 made a post record of what he said under caution at scene. A few hours later, at about 6am, the defendant took part in a cautioned video interview wherein he admitted in more details as to how and why he used a chopper to chop the victim in charge 1, and how he might have also hurt the victim in charge 2 in the process.

Summary of facts

3.I do not propose to repeat the facts here, save to say that there was a dispute in the afternoon between the defendant and the victims earlier on where the police was already involved. The matter was thought to be settled and no one was arrested. Later on in the middle of the night, the defendant got a chopping knife from his kitchen and went over to argue and then attacked the victims, causing them the injuries as stated in the facts.

Previous convictions

4.The defendant is of clear record.

Mitigation

5.The defendant is 30 years old. His background and psychological reports provide detailed information as to how he had been working as a fisherman all his life and how he has a feeling of inadequacy and inferiority, which no doubt contributed to his commission of the present offences.

6.It was put forward in mitigation on behalf of the defendant that although the attack cannot be justified, there was some provocation at an earlier stage. The defendant lives on a boat, a confined environment, not allowed to wander around in Hong Kong. Given his disposition and the confined lifestyle he had been leading, the defendant wrongly but perhaps understandably took action into his own hands. The confined lifestyle caused the defendant to have very little place for him to cool off and he does have problem in that area. The defendant has pleaded guilty after the voir dire, facts were admitted and the court should give him some credit for his guilty plea.

Sentencing tariff

7.There are no sentencing tariff for the charged offences. Authorities on wounding with intent show the sentence normally range from between 3 years and 12 years. The reason for there being no sentencing tariff is “obvious. The facts are so infinitely variable that the sentence is one for the judge to assess in all the circumstances. …” HKSAR v Au Kam-ming and Others, CACC 531/1997.

8.I have taken the following matters into consideration when sentencing. The attack cannot be said to have been premeditated. The defendant was still suffering from the effect of the attack by the victims on him earlier on in the day. The defendant has a clear record and according to the psychologist his chance of re-offending is low. The victims had refused to come forward to testify against the defendant thus indicating that they probably did not suffer too much trauma and did not think much about the incident.

9.I have also taken into consideration that the defendant had only decided to plead guilty after I had ruled admissible his cautioned statement, as well as the seriousness of the injuries of the victims.

10.Bearing in mind the range of sentences in relation to s.17 wounding cases, I find that an appropriate starting point for charge 1 is 30 months' imprisonment. Although I have taken into consideration the defendant's late plea, I also bear in mind that he is someone of clear record and it is clear from what he had been telling the probation officer and the psychologist that given the defendant's disposition, he might have honestly believed that he was acting in self-defence and hence insisted on pleading not guilty. I will grant the defendant the full one third discount despite his late plea, and sentence him to 20 months’ imprisonment on charge 1.

11.In relation to charge 2, I will adopt a starting point of 18 months' imprisonment and reduce that to 12 months' imprisonment upon his guilty plea. Bearing in mind the principle of totality, I will order that the sentences for the 2 charges to run wholly concurrently.

12.The defendant is sentenced to a total of 20 months' imprisonment.