HKSAR v. Ho Wing Lung

DCCC1174/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1174 OF 2010

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Reasons for Sentence

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1.The defendant was charged for wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap.212

2.The defendant changed his plea after the victim and PW2 gave their evidence. The defendant admitted he was the assailant mentioned by the victim and admitted the whole of the victim’s evidence. The defendant was convicted accordingly.

The facts

3.The victim started to acquaintance with the defendant in 2008 and they became causal friends. Then in end of 2009 through introduction of friends the victim came to know Tsoi Heung Kwan and started to date her, later he learnt that Tsoi was the defendant’s wife but Tsoi told him that she decided to get a divorce.

In Feb 2010 Tsoi moved to live alone at the flat in question, later the victim also moved into the flat. At that time the victim did not see the defendant again and he had no idea if the defendant knew about his relationship with Tsoi. The defendant was remanded for an offence of possession of dangerous drugs during that period of time and the defendant was discharged from prison in May 2010.

On 22 June 2010 at about 0430 hours, both the victim and Tsoi were sleeping inside the flat. The defendant shouted at the door and demanded entry. The defendant later entered the flat via a window, and came out again through the main door to the corridor to pick up 2 glass bottles.

4.The defendant then used the glass bottles to hit the victim who was lying on the bed on his head 2 to 3 times until one of the bottles broke, the victim resisted the attack by warding off the struck, but the defendant stabbed his left chest, back and left arm with the broken glass bottle, and went further to hit him, as a result he fell on the ground.

During the attack a man outside told the defendant that “someone has called the police, let’s go” but the defendant ignored that and continued to attack the victim for 1 to 2 minutes, then the man shouted again “let’s go, police is coming” only at that point the defendant left with the man outside.

5.The victim was bleeding all over his body and was sent to United Christian Hospital immediately after police arrival. He was diagnosed to have stab wounds to his neck, left chest wall, left upper back and left arm. He also suffered from inflation of lung due to the penetrating chest wound. Emergency surgery was carried out and he was discharged from the hospital on 28 June 2010.

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.

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 the present case the victim was in a vulnerable position, he was attacked at home with the light off after he was woken up from his sleep by the trespassing defendant, his head and upper body was struck by glass bottles in dark and suffered cut wounds to his neck, left chest wall, left upper back and left arm, he was bleeding all over his body and emergency surgery was carried for penetrating chest wound. I accepted the defence submission that the offence was not a premeditated one but he defendant ignored his accompany when he was first told to stop and only stopped after he learnt that the police was coming. The victim was admitted to hospital for about a week, and required follow up. I consider the appropriate starting point to be 3.5 years imprisonment.

6.The defendant aged 21 married but separated with his wife and lives with his mother, siblings and his son aged 3, who was being taken care by the grandmother. The defendant was a kitchen worker earning $8000 per month before his arrest. The defendant was provoked by the adultery of his wife and the victim, but he was remorse for what he did, further the victim has expressed his understanding and forgiveness as to what the defendant has done to him. The defence urged the court to allow 25% discount to the defendant for his late plea.

7.The background report revealed that the defendant has an unhappy childhood and adolescence. He suffered from battering of his stepfather during his teenage and was prompted to leave home to seek merriment outside, under bad peer influence, he first committed crime at the age of 14, yet he was given opportunity to rehabilitate and was ordered to receive probation and later disciplinary training at a reformatory school. However, the defendant failed to keep on the right path.

8.The defendant has 7 previous conviction records, of which 4 related to violence and 2 related to dangerous drug, he was last discharged from prison in May 2010 and was under CSD supervision until 25 May 2011. The defendant committed the present offence soon after he was discharged from prison. Wounding with intent is a serious offence, lengthy imprisonment upon conviction should be within the contemplation of the defendant, that his son is only aged 3 was known to the defendant before he chose to commit the offence, I do have sympathy with the boy that he was not provided with a complete family by his irresponsible parents, but I do not consider this amount to a mitigating factor.

9.The defendant only pleaded guilty after the conclusion of PW1 and PW2 evidence, the 1/3 rule does not apply, taken into account that he pleaded guilty before the prosecution called the forensic evidence and all along the defence suggested during the cross-examination that the assailant could be someone other than the defendant, I allow 1/6 discount to his late plea. I do not consider there to be any mitigating factor that called for further deduction.

Order

10.The defendant is sentenced to 35 months imprisonment.

Please refer to CACC149/2011 for the relevant appeal(s) to the Court of Appeal.