HKSAR v. Chen Siu Fung

DCCC 957/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Criminal Case No. 957 of 2010

_____________________________________________

_____________________________________________

REASONS FOR SENTENCE

1.The defendant faces 2 charges. Charge 1 is attempted wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212 and section 159G of the Crimes Ordinance, Cap 200. The particulars of the offence are that the defendant on the 11^th day of July, 2010, outside No 38 Shui Hau Village, South Lantau Road, Lantau Island, in Hong Kong, attempted to unlawfully and maliciously wound CHI Chi-chung with intent to do him grievous bodily harm.

2.Charges 2 is assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance, Cap 212.  The particulars of offence are that the defendant on the 11^th day of July, 2010, outside No 38 Shui Hau Village, South Lantau Road, Lantau Island, in Hong Kong, assaulted CHI Chi-chung, thereby occasioning him actual bodily harm.  The defendant pleads guilty to both charges.

Facts Admitted

Charges 1

3.On 11.7.2010 at about 0315 hours the defendant pointed a knife at his neighbour Mr Chi Chi-chung (“the victim”) whom he had known for more than 20 years.  The victim was at that time having a barbecue party outside his own house at No 38 Shui Hau Village, Lantau.  The defendant asked if the victim was celebrating his uncle’s death.  The victim got a chair and stepped back from the defendant.  The defendant used the knife to chop the victim twice, but was warded off by the victim with the chair and the knife slipped off the defendant’s hand.

Charge 2

4.The defendant then struck the victim’s nose, causing abrasion over both nostrils.  The defendant was subdued and calmed down.  A report was made to the police and the defendant was arrested.  The defendant was found to have an abrasion over his scalp.

Criminal Record

5.The defendant has 11 previous convictions of which 6 were violence-related including 1 AOABH.  His last conviction was for an offence of robbery for which he was sentenced to 50 months imprisonment on 20.12.2006.

Mitigation

6.The defendant is aged 28 and is single.  He was educated up to Form 1 level and had worked as a manual worker.  He began to receive CSSA of $3,000 per month since March 2010.  His parents divorced when he was in his early teens.  His father did not give much care and attention to him and he was mainly looked after by his uncle.  Because of the lack of supervision he mixed with bad elements and had infringed the law a number of times.

7.The defendant committed the present offences because he found the victim having merriments with other people when he was grieving the death of his uncle which occurred the day before.  He became emotional and in a fit of anger took a knife to ask if the victim was celebrating his uncle’s death.  When the victim took up a chair he thought the victim was attacking him and he instinctively used the knife to hit back.  He was struck on the head by the chair and he hit the victim’s nose in retaliation.

8.Solicitor representing the defendant points out that the case arose under unfortunate circumstances at a time when the defendant was grieving the death of his uncle.  The offences were committed spontaneously with no pre-meditation.  The injury to the victim was minor and the defendant pleads guilty at the earliest opportunity.

9.Solicitor cites for the reference of the court the case of HKSAR v WONG Sze Ho and Another HCCC 166/2009 in which the Court of First Instance sentenced a person, who used a glass honey jar to forcefully hit the head of another person during an altercation between 2 groups of persons having barbecue parties in Big Wave Bay, to 9 months imprisonment after trial.  He asks the court to adopt a starting point of between 2 and 2 ½ years imprisonment for Charge 1 and a short sentence on Charge 2 and, after giving the defendant the usual discount for guilty plea, order the 2 sentences to run concurrently.

Sentence

10.The solicitor for the defendant rightly points out that there are no sentencing tariffs for the offences in the present case.  This is understandable because the circumstances under which such offences are committed can vary substantially so do the sentences.  The court must look at the facts and circumstances of each individual case and defendant in order to arrive at the most appropriate and just sentence.

11.The court appreciates the sorrow and grief the defendant felt because of the death of his uncle who had looked after him like a father.  This, however, can never be an excuse to attack other people who happened to be having the fun of a barbecue party.  The defendant has an appalling criminal record.  He committed his first offence when he was 12 years old and he has since kept offending the law.  Despite all the punishments which he had received he clearly has made no efforts to mend himself.  It can also be seen from his record that he is a person of violence.

12.The court accepts that the defendant did not succeed in wounding the victim with the knife and the injury suffered by the victim was relatively minor.  The court also takes into account the injury suffered by the defendant himself in the incident.  Bearing all these in mind the court adopts a starting point of 3 years imprisonment for Charge 1 and 9 months imprisonment for Charge 2.  Giving credit to the defendant for his guilty pleas the court sentences him to 2 years imprisonment for Charge 1 and 6 months imprisonment for Charge 2.  Having considered the nature of the case and the totality principle the court orders 3 months of the sentence of Charge 2 to run consecutively to that of Charge 1.  The defendant is therefore to serve a total term of 2 years 3 months imprisonment.