HKSAR v. So Yuk Shing

DCCC 1287/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1287 OF 2010

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Reasons for Sentence

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Charge

1.The Defendant pleads guilty to unlawfully and maliciously wounding, contrary to section 19 of the Offences against the Person Ordinance, Cap. 212.

Facts

2.In the evening on 9 October 2010, the victim and other parents were tending their children at the sitting-out area outside Pik Yuen House, Shek Pai Wan Estate, Aberdeen. The Defendant was unknown to them. He was sitting on a bench nearby murmuring to himself. He then approached a girl and took out an empty soft drink can from his paper bag. He threw it onto the ground where the children were playing. He picked up the empty can and repeated the throwing for three more times.

3.The victim confronted him about his behavior toward the children. A brief dispute ensued. He left. After 5 minutes, he returned. The victim told him not to cause trouble to the children again. He took out a 12-inch long chopper from his paper bag and waved it at the victim. The victim tried to flee but fell down. He attacked the victim, who managed to defend by a piece of wood picked up from the flower bed. Upon seeing the victim’s hand wounded by the chopper, he left the scene with the chopper.

4.The police viewed the CCTV footage of Pik Ngan House showing him at the lobby and the lift. He was put onto the wanted list.

5.On 20 October 2010, he surrendered himself to the police. After arrest and caution, he admitted having thrown the empty can at the children at the sitting-out area. The adults interfered with him. He wanted to punch them. He went back home in Pik Ngan House to get a chopper. His intention was only to use it to threaten people. When he returned to the sitting-out area, he was surrounded by 7 adults. Someone punched his eye. The victim was holding a piece of wood. He acted in self-defence when chopping the victim. Afterwards he threw away the chopper.

6.The victim was hospitalized for two days. He suffered a 1.5 cm deep cut to the third finger of his left hand with sensation of the finger grossly diminished. There was also a superficial cut to the left ring finger. The palmer radial sided digital artery and nerve were transected and repair of the digital artery was performed.

7.On 22 October 2010, the victim and a parent positively identified him at an identification parade.

Personal background and mitigation put forward

8.D is now 35 years of age. He was educated up to F.1. He worked as a restaurant cook, cleaner and then delivery worker until remanded in custody. He has been suffering psychiatric illness for 8 years. He first received psychiatric treatment due to auditory hallucination. He has 1 previous conviction, which was possession of Part I poison. At the time of the offence, a voice had told him to go home to get a chopper.

9.The 2 psychiatric reports I have called before sentence reveal that despite his long history of psychiatric complications due to intoxication and drug-induced psychosis, he can stay free from mental symptoms where denied access to illicit substances and maintained on medication. In-house hospital treatment is not required. Out-patient psychiatric treatment is sufficient at the present stage.

Examples of prison terms

10.There is no sentencing tariff. Defence counsel has provided me with a host of examples of prison terms. Where a wounding had been committed with much premeditation and resulting in severe harm, a sentence of 2½ years had been imposed even on a plea on review (Secretary for Justice v Hung Kar-chun CAAR 9/2010, which dealt with a more serious type of wounding, namely section 17 wounding). Where there was little premeditation and resulting in no severe harm, a starting point of over 2½ years was rarely adopted for a section 19 wounding such as our present case (HKSAR v Yip Kam Wah & Cheng Yiu Fai CACC 413/2007; HKSAR v Chan Yat-fu DCCC 314/2009; HKSAR v Leung Chun-ho DCCC 501/2010; HKSAR v Leung Mei-sze Mandy DCCC 887/2010).

Sentencing this Defendant

11.After he was accused of disturbing the children, he got very angry and went back to his home to get a chopper. Upon returning to the sitting-out area, he was approached by the victim, who told him again not to disturb the children, he started waving it at the victim. When the victim fell down and picked up a piece of wood in self-defence, he began to attack the victim. As the events took place with little intermission, his fetching and using the chopper can be regarded as premeditated only to a limited extent.

12.The chopper was a powerful weapon in itself and the more so when being waved in attack by a man who had gone berserk in a public area occupied by both children and adults at that juncture. However, the injuries to the victim were not very serious.

13.I have been thinking of how he can receive psychiatric treatment as dictated by need as opposed to his wish. I am aware of section 52 of the Mental Health Ordinance, Cap. 136, which empowers the Chief Executive to transfer a prisoner to a mental hospital upon medical advice. I am content that a prison term shall be imposed with this mechanism at work in our present case. I take a starting point of 18 months. I reduce it to 12 months because of his plea of guilty. There are no other mitigating factors. This is his sentence.