HKSAR v. Au Ying Ho

DCCC948/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.948 OF 2010

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Reasons for Sentence

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The defendant was charged for wounding with intent, contrary to section 17 of the Offence against Person Ordinance, Cap.210

The defendant pleaded guilty and admitted the facts, he is convicted accordingly.

Facts

The defendant is a married man with 4 children, since 2003 he has engaged in an extra-marital relationship with PW2 with whom he has 3 children.

In early 2010, the relationship between PW2 and the defendant began to wane and PW2 commenced a relationship with the victim. The defendant and the victim knew the existence of each other and had met once in July 2010 when the victim escorted PW2 home.

On 23 July 2010, the defendant and PW2 went out to celebrate the defendant’s birthday, wine was consumed. On their way back to PW2’s flat, the defendant noticed PW2 arranging a meeting with the victim by text messages with her mobile phone; the defendant took an opportunity to take away her phone.

Later at about 7:30pm, the victim sent a text message to PW2’s phone notifying his arrival, 5 minutes later the defendant appeared. Without saying a word, the defendant raised a dark glass bottle and stuck the victim to the right part of the top of his head. The bottle smashed and the victim’s head immediately began to bleed. The victim tried to run away, but was chased by the defendant who punched his head and face. The defendant repeatedly accused the victim of “interfering with his “wife” and continued to chase and beat the victim. The assault lasted between 3 – 5 minutes before the victim hailed a taxi and rushed to Queen Elisabeth Hospital (QEH) for treatment.

The victim was admitted to the Emergency medical Ward of QEH for overnight observation and discharged on 24 July 2010. The medical finding being:

· Sustained injury to head region

· Tenderness over scalp region

· Lacerations over right forehead, nasal region

· Linear abrasion over right palm region

· Suturing done: 2 stitches to scalp wound, 4 stitches to facial wound, 3 stitches to right hand wound.

The victim re-attended QEH on 26 July 2010 for left sided loin region pain. Initially he attended Prince of Wales Hospital and subsequently returned to QEH. On 27 July 2010, the victim was admitted to the Department of Surgery at QEH, he was treated and discharged. The medical finding was unremarkable.

The defendant was arrested and in a subsequent video recorded interview, the defendant stated that when he realized PW2 was going to meet the victim, he went to meet the victim himself; he took a bottle of wine so that he could drink while waiting. When he saw the victim, he accused the victim of seducing his wife, the victim scolded him in foul language, he hit the victim’s head with the bottle, the victim ward him off with an umbrella. He chased after the victim and punched him.

Mitigation

The defendant aged 27, a meat wholesaler earning about $70,000 per month. He lives with his immediate family, before the present case he provided monthly maintenance of about $30,000 to his wife and PW2 respectively. Meanwhile he has broken off with PW2, but he continues to take care of his children with PW2 and provided monthly maintenance of about $10,000 to PW2.

The defendant pleaded guilty, he was remorse for his wrong, and he has been remanded for 31 days. The attack was provoked by PW2, the defendant was under influence of alcohol, and it was an isolated act out of character. The victim has forgiven him and he was willing to compensate the victim. The defence urged for a short sentence.

In HKSAR V Vaithilingam Sivaraj CACC 290/2009 the victim suffered injuries which required operation, this case concerned application for leave to appeal sentence out of time. The fact of the case was the result of a drunken brawl. Out of the incident, the victim was operated on, and thereafter he had spent some time in intensive care and luckily with no permanent injuries. The trial judge adopted a starting point of 5 years and the appellant was sentenced to 40 months imprisonment. Hon Tang VP in refusing leave to appeal sentence out of time, stated that authorities on wounding with intent show the sentence normally range from between 3 years and 12 years, and commented the sentenced imposed was not manifestly excessive.

In AG v. Ng Chuk Hung (CAAR 1/1994), the victim suffered ‘multiple small wounds over left upper chest, arms, side hip and thigh’. A probation order was imposed.

In Secretary for Justice v. Chau Wan Fun (CAAR 1/2006), the victim sustained ‘catastrophic’ injuries, he was unconscious five weeks after the attack from which he sustained ‘chest stab wound, laceration of heart with open wound into thorax, and respiratory failure’. Complication from the injuries developed in the victim’s left leg which required its amputation from above the knee. A sentence of 3½ years’ imprisonment was imposed.

In AG v. Low Wing Wah (CAAR 8 of 1995), the victim sustained ‘a deep lacerated wound to the eyebrow and the eye, with the result that the victim lost his eye’. A sentence of four years’ imprisonment was imposed.

Return to the present case, the injuries sustained by the victim though serious, can be regarded as skin wounds and falls within the lower range of the injuries mentioned in the above four cases. The defendant has a clear record and I accepted the present case was an act out of character under influence of alcohol and the chance of re-offending is minimal. I consider CSO may be one of the sentencing options and in order to have more information about the defendant, the case was adjourned for a background and CSO report. The defendant was remanded pending the reports.

CSO is recommended and the defendant consented to such an order. The probation officer was of the view that the gathered information revealed that the defendant attained junior secondary school education. He worked steadily and started to set up since 2006 his own businesses, which were profitable. Apart from his marriage, in which he had four children, he sustained since 2003 an extra-marital relationship with PW2 in which he got three other children. Both his wife and PW2 remarked that he was not a man of hot temper. He expressed regret and said he realized his wrongful act did not help to resolve the matter. The present offence, which took place on his birthday after drinking, was apparently a display of his failing to let go the relationship. After the incident, he managed to work out access arrangement with PW2 in the past months. In light of such and given his expressed regret and the positive remarks, he may stand a good chance of social rehabilitation in the open community.

Taking into account of the circumstance of the case, the background and the character of the defendant, I consider a COS order with long duration being an alternative to custodial sentence would be sufficient to punish and reflect the criminality of the present case.

Order

The defendant is sentenced to serve a Community Service Order of 240 hours

(order explained and understood)

The defendant is to compensate the victim (PW1) in the sum of $5000 to be deducted from bail.