HKSAR v. Tavera Veloza Angela Sirley

DCCC1361/2009

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1361 OF 2009

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Reasons for Sentence

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

2.The particulars are that on 14 November last year inside the Dragon-I Bar in Wyndham Street, she had unlawfully and maliciously wounded the victim with intent to disfigure her.

3.As Mr McCoy pointed out, the evening started off quite peacefully in that the victim and her cousin had gone to the bar to celebrate birthday. They sat on two stools at the bar and ordered their drinks. The defendant had earlier occupied one of those stools and had left her handbag on the ground next to the stool and had left her seat in order to go outside to smoke.

4.It transpired that after the smoking the defendant came back, found the victim sitting in her seat and was of course annoyed. The defendant then spoke to the victim in English and told her that she had taken her seat. The victim however ignored the defendant. Because of that, the defendant then got agitated and pushed the forearm of PW1, the victim, resulting in her losing her grip on the glass and the glass fell on the ground.

5.The victim and the defendant stared at each other for some time and then when the victim continued to ignore the defendant and continued to drinking with her cousin, the defendant got so agitated that she poured the wine in the wine glass in her hand over the victim’s head. Then she used the glass to strike the victim’s face and unfortunately the glass broke and it slashed the victim’s face.

6.The victim suffered a slash across her face which resulted in a 14-centimetre long wound over her left face and left periorbital region. When the stitches were removed, as I can see from the photographs, that has left a prominent scar over her face. The victim is still a young lady as I can see from the photograph and as with all young ladies, their faces are their fortunes and so because of this incident, it would affect her future.

7.The defendant herself is aged 28 and has a clear record. She is a native of Columbia and is in Hong Kong on a student visa to study English at the Hong Kong University. I am informed that she lives with her boyfriend who is now her husband since 9 May this year. She has a child of 9, a girl, from a previous relationship, and this child lives with her and her present husband.

8.The defendant’s husband is a banker and travels quite a lot but he is able to afford domestic help and also has a family to help him take care of the child while the defendant is incarcerated. So there is no need for me to call for a social welfare report on the child.

9.What can be said in mitigation on behalf of the defendant has been said by Mr McCoy. It is obvious that the defendant and the victim had both been drinking. One could say there is a hint of perhaps provocation there because the defendant felt that she had a right to the stool which the victim was occupying and the victim had instead of apologizing proceeded to ignore her.

10.Alcohol, however, is not a defence and it can only be taken into consideration that it does perhaps cause the situation to be blown out of proportion. As Mr McCoy has rightly pointed out, there are no guidelines. Each case of this nature really has to turn on its own facts.

11.The mitigation on behalf of the defendant is the fact that she has pleaded guilty and thus showing her remorse. Another strong mitigating factor which I do take into account also is the fact that there is a voluntary compensation to the victim. And it has been clarified by Mr McCoy this does not affect the victim’s future civil action against the defendant should she wish to pursue that. The cheque is one of $350,000 and it is made out to the Registrar of the court, to hold in trust for the victim in this case.

12.I have considered all the facts of this case. The maximum sentence for section 17 wounding is one of life imprisonment, and that reflects how serious the offence is. But having considered all the facts in this case, it was not a typical case of hooliganism. It was a case where two decent people having drinks at the bar and come into contact with each other and because of the drinks they had blown everything out of proportion. It was a spontaneous act on the part of the defendant and so in the circumstances I consider that an appropriate starting point in the case would be one of between 4 to 5 years’ imprisonment.

13.The defendant is of a clear record, so overall I consider therefore that an appropriate starting point in this case in relation to the defendant is I will adopt the lowest starting point of 4 years’ imprisonment. I will take away one-third because of her plea of guilty, thus reducing the sentence to 32 months. And I will further reduce it by another 6 months because of the voluntary compensation, and so the defendant will go to prison for 2 years and 2 months.