HKSAR v. Chow Hon Yuen

DCCC 1119/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1119 OF 2010

--------------------

--------------------

------------------------------------------

REASONS FOR SENTENCE

------------------------------------------

1.The Defendant has been convicted on his own plea on one count on the indictment, namely wounding with intent, contrary to Sections 17(a) of the Offences against the Person Ordinance, Cap. 212.

2.The amended ‘summary of facts’ admitted by the  Defendant disclose that he and the victim, Choy Po-lo, aged 69 years, were neighbours.  They had had disputes  in the past and bore grudges against each other.  At around 10 a.m. on 10 August, 2010, when Mr. Choy had finished his breakfast at a restaurant at Shiu Wo Street in Tsuen Wan, he left the restaurant and walked towards the direction of Chung On Street. He suddenly felt pain at the right side of his neck and saw blood spilling out. He immediately looked backwards and saw the Defendant chopping him with a knife about 55 cm long. Mr. Choy used his arm to fend off the attack and the knife dropped to the ground.  A PLB driver who had parked his PLB at the terminus outside the restaurant and alighted from his PLB had heard some noises and saw Mr. Choy and the Defendant in a dispute, pushing each other. He also saw that Mr. Choy had a wound on his neck and it was bleeding. He reported the matter to a nearby patrolling police officer, who went to the Defendant and Mr. Choy. Mr. Choy told the police officer that he was being chopped by the Defendant. The bloodstained knife was on the ground. The police officer declared arrest on the Defendant, who made no response under caution.

3.Mr. Choy lost consciousness and was sent to the Princess Margaret Hospital, where he had to undergo an emergency operation.  He sustained an 18 cm chop wound from his right face to posterior neck with profuse bleeding, a 3 cm cut wound over his right forearm, a 1 mm laceration over the right external carotid artery, laceration of right tragus, lower 1/3 of right pinna and superficial lobe of right parotid and fracture over right mandibular condyle. He was noted to have right facial nerve palsy which needed further medical treatment.  He was discharged from the Princess Margaret Hospital on 18 August, 2010.

4.The Defendant was admitted to the Yan Chai Hospital from 10 to 13 August, 2010. He was arrested for the offence of wounding on 10 August, 2010 and under caution said he had taken the knife from home that morning and waited for Mr. Choy at the restaurant and chopped his right neck from behind, and could not remember what happened thereafter. In a subsequent interview on 11 August, 2010,  he said much the same thing.

5.The Defendant is now aged 77 years and single. He has had education up to primary 1. He lives alone in Hong Kong, in a hut that he built himself in the New Territories. He does not like to mix with others, and is a solitary person. His elder brother lives in the Mainland.  His only other relative is a niece, aged 50 years, who lives in Hong Kong and would occasionally visit the Defendant.   He used to be a construction site worker and then a hawker.  Since 2003, he has been relying on CSSA.

6.The Defendant and the victim are neighbours, with a history of ill-feeling between them.   The Defendant has two previous convictions, both violence related. The first one was in 1992, for an offence of wounding for which he was fined $1,000. The more recent one, on 13 July, 2010, was for an offence of assault occasioning actual bodily harm, for which he was sentenced to one month imprisonment, suspended for 2 years and ordered to pay compensation of $500 to the victim.  I am told that the victim on that occasion was also Mr. Choy.  By the present conviction, the Defendant is in breach of the suspended sentence.

7.Defence Counsel submitted that the Defendant had grudges against Mr. Choy for keeping pets – the victim was younger and stronger than the Defendant and had constantly harassed the Defendant over trivial matters in the past 3 to 4 years. He submits that the Defendant was provoked by Mr. Choy’s long time harassment of him into attacking Mr. Choy. The Defendant also felt aggrieved because in the incident in July, 2010, he was attacked by Mr. Choy first and responded in defence.  However, he was convicted of an offence instead. Counsel sought leniency for the Defendant, praying in aid the Defendant’s early plea and old age, and the special circumstances of the case and the long time harassment the Defendant had endured at the hands of Mr. Choy. He also sought to rely on HKSAR v. Hau Ping-chuen, CAAR 12/2007, where in paragraph 15 the Court referred to the decision in HKSAR v Tse Hok-lam [2005] HKLRD 344, where the usual range of sentence for wounding with intent is described as being “3 to 12 years’ imprisonment”. 

8.After hearing Counsel in mitigation, I adjourned sentence until 5 January, 2011, calling for a Background Report, a Psychiatric Report and Psychologist Report on the Defendant, remanding the Defendant in custody.  I also called for a victim impact assessment report and called for the file of TWCC 1948/2010, wherein a suspended sentence was imposed on the Defendant for an attack on the same victim, to be made available to me.

9.When the matter resumed before me on 5 January, 2011, the Psychiatric was not available as further observation of the Defendant was considered necessary. I then adjourned the matter until today. I have before me now the Background, Psychiatric and Psychologist Reports on the Defendant, as well as the victim impact assessment report on Mr. Choy and have viewed all of them. The file of TWCC 1948/2010 has also been viewed by me. The reports have all been explained to the Defendant by his Counsel. Most of the contents are agreed except that the Defendant denies telling the psychiatrist what is recorded in paragraph 4 of the psychiatric report about having no family and having nothing to lose even if he killed the victim and he denies telling the clinical psychologist what is recorded in paragraph 8 of her report that he intended to kill the victim.

10.It is clear from a perusal of the file of TWCC 1948/2010 that the Defendant was legally represented at the time when he pleaded guilty to the offence of assault occasioning actual bodily harm of Mr. Choy and he admitted the facts of the offence and was duly convicted and sentenced. On that occasion, he had hit Mr. Choy with a stick on his arm when Mr. Choy drove by on his motorcycle.  On this occasion, he laid in wait for Mr. Choy when Mr. Choy left a restaurant he frequented after having breakfast and attacked him from behind with a knife 55 cm in length.

11.The victim impact assessment report on Mr. Choy discloses that as a result of the present attack, Mr. Choy had to have 2 major operations and stayed in hospital for almost 2 months. He had right facial nerve palsy, so that his right eye could not be completely closed, and there was constant secretion from his eye, causing blurred vison and constant pain. His right ear and the right side of his face were numb and painful most of the time and his right facial muscle was swollen making his mouth tilt, what was described by the clinical psychologist who interviewed him as an obvious and permanent disfigurement. His lips had also lost their sensation, and saliva secretion and his mouth movement was greatly restricted, such that he had difficulty in chewing and swallowing. The tendons in his hand were injured when he struggled with the Defendant during the attack and his motor movement was adversely affected and he had difficulty lifting heavier items. His daily functioning had been affected by his injuries, affecting his eating, self-esteem, social relationships and self-care. Although he denied to the clinical psychologist any serious emotional disturbance, the clinical psychologist opined that he used avoidance and suppression to cope with distress caused as a result of this incident and recommended supportive counseling and monitoring by a social worker.

12.The Background Report discloses the Defendant’s background in detail and I do not intend to rehearse the contents herein.  It also sets out the history of the disputes between the Defendant and Mr. Choy, which goes back quite a number of years. The Defendant told the interviewing officer that he committed the present offence  out of revenge – he was angry that Mr. Choy had made a report to the police in respect of the incident in July last year, as a result of which he was remanded in Siu Lam Psychiatric Centre for two weeks whilst reports were prepared – he had also sustained injury in the incident and felt that a report should not have been made to the police

13.Both the Psychiatric Report and the Psychologist Report indicate that the Defendant is not in need of any treatment. The Defendant told both the psychiatrist and the clinical psychologist that he committed the offence to get revenge.  The psychiatrist opined  that the ‘risk of recidivism is regarded to be high in view of his lack of remorse and regret for the index offence. His return to the community would pose definite risk to the victim’ while the clinical psychologist opined ‘his risk of recidivism of violence related offence is not low. In fact Mr. Chow appears to be a constant and serious threat to the victim’s safety’ and further said ‘ his motivation to change is impressed to be very limited’.

14.Counsel in submission said the Defendant was remorseful for what he had done and sought leniency on behalf of the Defendant – however, that is at odds with the opinions of both the psychiatrist and clinical psychologist, and both assess the risk of his re-offending as high.  He also submitted that the attack was provoked by the victim’s long time harassment over trivial affairs. It is clear there was no harassment immediately prior to the attack.  This is clearly a pre-meditated attack – the Defendant armed himself with a knife 55 cm in length and laid in wait for Mr. Choy – he knew where Mr. Choy was having breakfast, waited for him to leave the restaurant and attacked him from behind with the knife, chopping him on his neck – the injuries Mr. Choy sustained were serious ones, from which he still suffers, as set out in the victim impact assessment report.

15.The only mitigation of weight before me is the Defendant’s plea – there is little else.   Within a month after he was given a suspended sentence for assaulting Mr. Choy, he laid in wait for Mr. Choy armed with a knife and chopped his neck from behind. This cannot be described as an isolated incident and it was a serious assault, and there is the risk of his re-offending and perhaps even attacking Mr. Choy again. I note that the Defendant is now aged 77 years and I have borne this in mind in determining sentence. But in the particular circumstances of this Defendant and this offence, in my view the Defendant’s advanced age cannot amount to a significant mitigating factor warranting further discount in sentence.

16.This is an offence of such seriousness that only an immediate custodial sentence is justified.  I take as a starting point 5 years’ imprisonment, discount it by one-third to reflect the Defendant’s plea and sentence him to 3 years’ and 4 months’ imprisonment. 

17.The Defendant is in breach of the suspended sentence imposed in TWCC 1948/2010.  I can see no reason not to activate this. Nor has Counsel sought to argue that this should not be activated.  The suspended sentence is activated, to be consecutive to the sentence I have imposed.