HKSAR v. Lee Kwai Yuk

DCCC110/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 110 OF 2011

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Reasons for Sentence

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The Charge and the Facts Admitted

1.The Defendant pleaded guilty to one charge of “causing grievous bodily harm with intent”, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212. The victim in this case is the Defendant’s husband and the attack occurred at night while they were at home alone.

2.The Defendant and her 57-year-old husband have been married for 38 years but their relationship has never been good. On 16 December 2010, the Defendant and her husband had an argument over the wedding arrangement of their son while they were in the Mainland. In the heat of the argument, the Defendant’s husband hit the Defendant’s mouth with one of his shoes. The couple then returned to their home in Hong Kong separately.

3.Shortly after mid-night on 17 December 2010, the Defendant used a hammer, weighing about 0.5 kg, to hit her husband’s head while he was asleep. The Defendant then left home. The husband’s head bled and a report was made to the police. When the police were conducting enquiries with the Defendant’s husband, the Defendant returned home and she was arrested. Under caution and during the subsequent video-recorded interview, the Defendant made full admissions to the police. She admitted hitting her husband’s head twice with a hammer as she hated him very much. The Defendant also led the police to retrieve the hammer from the corridor outside their home.

4.Upon medical examination, the Defendant’s husband was found to have the following injuries :

(a) a ragged linear laceration of around 2cm in length at the right temporal region;

(b) two other ragged lacerations nearby of 2cm and 5cm respectively;

(c) swelling around the wounds;

(d) depressed skull fracture at the right parietal region and cerebral oedema at the adjacent region;

(e) a 3-cm laceration over right parietal region with communication to the depressed skull fracture;

(f) a 2-cm superficial laceration just posterior to the above lesion;

(g) a 1.5-cm superficial laceration 3 cm anterior to the vertex.

5.The husband’s scalp laceration was cleaned and sutured and the skull fracture was treated conservatively. He was stable all along and no neurological deficit was noted. On 24 December 2010, he was discharged.

6.Subsequently, the husband’s scalp wound was found to have healed well. This court was informed that he does not have any permanent injuries and no further medical follow-up sessions are required. Now, the husband has resumed working as an assistant in a restaurant’s kitchen.

The Defendant’s Background

7.Although the Defendant’s identity card shows that she is now aged 67. Mr. Tse who acted for her informed the court that the Defendant’s actual age is only 57. In the psychiatric report dated 30 December 2010 prepared by Dr. Y. S. Leung, it was also stated that the Defendant claimed her actual age to be only 57. She has a clear record.

8.The Defendant was educated up to primary level in the Mainland and she moved to live in Hong Kong in 1982. Since then, she had taken up a number of jobs. At the time of the incident, she was a housewife, living with her husband in a public housing estate unit while their four children all lived apart.

Mitigation

9.In mitigation, it was said that this case is a family tragedy. The Defendant had no one to talk to at the time and she felt very depressed. It was foolish of her to have done what she did but she only committed the offence because of momentary loss of control. Her act at the time was completely out of character. Mr. Tse for the Defendant told the court that despite the incident, the Defendant’s family members remain supportive of her. Her husband and children have all forgiven her and they asked for a lenient sentence to be imposed so that the Defendant could re-unite with her family as soon as possible.

10.This morning, two letters written by the Defendant’s husband and her son respectively were given to the court. In each of those, a lenient sentence was asked for and it was said that the incident was a one-off matter and the Defendant has already learnt a lesson.

11.Further, Mr. Tse informed the court that about 10 years ago, the Defendant had made two reports to the police about her husband’s assaults on her. The matter, however, was settled on both occasions.

The Reports

12.In order to obtain more information on the Defendant, I have adjourned sentence so that a background report could be prepared. When the report was available, it was then revealed that the Defendant has all along been detained in Siu Lam Psychiatric Centre after her arrest. As a result, two psychiatric reports were further called for, the contents of which I shall deal with later.

13.According to the Probation Officer who prepared the background report, the Defendant and her husband got married in the Mainland in 1973. A few years later, the family moved to live in Hong Kong.

14.The Defendant’s relationship with her husband has been poor ever since they got married for the Defendant believed that her husband had another girl-friend whom he loved but whom he could not marry. The Defendant told the Probation Officer that whenever she raised this with her husband, he would hit her mouth, making it swollen. The Defendant felt that her husband did it on purpose so as to humiliate her in front of other villagers and the girl he loved.

15.It was reported that after the family has settled in Hong Kong, the Defendant had another extra-marital affair with one of his colleagues. That relationship, according to the Defendant, lasted more than 10 years. As a result, the Defendant did not receive sufficient money from her husband for the necessary family expenses and she had to take up some part-time jobs while looking after her four children. Whenever the Defendant complained to her husband, he would hit her with his hands or shoes. The Defendant claimed that her left eye has become partially blind due to her husband’s repeated assaults on her. The Probation Officer was told that about 4 years ago, the extra-marital relationship of her husband ended as he had changed his work place. Since then, the relationship between the two of them has improved a bit.

16.Concerning the present offence, what the Defendant said is generally summarized in the facts she admitted. The dispute was over how many tables they should arrange in respect of their son’s wedding banquet. At that juncture, the Defendant complained to her husband that if he had not used his money on extra-marital affairs, they would have sufficient funds for holding a bigger banquet. The husband then lost his temper and scolded the Defendant by using words to the effect that she was a bitch. He also hit her mouth and right eye with his shoes.

17.The Defendant told the Probation Officer that after returning to Hong Kong and when she was recalling the assault and insult by her husband, she felt deeply hurt as she considered herself to be the one who had been working very hard for the family. The Defendant therefore wanted to die with her husband. However, after hitting her husband on the head twice, she heard him shouting out painfully, she could then no longer hit him and she left home.

18.During the interview, the Defendant admitted that she had lost control of herself at the material time. She felt sorry for hurting her husband and causing all the troubles to her family. She is now deeply remorseful.

19.When preparing the background report, the Probation Officer also interviewed the Defendant’s husband and her four children. What they said is generally consistent with the account given by the Defendant. While the husband denied having any extra-marital relationships and alleged that the Defendant is a suspicious person, the children actually recalled incidents in which their father was seen together with a woman. The husband also admitted that he has assaulted the Defendant with his hands and shoes during their disputes in the past. He now, however, misses the Defendant and hopes that the Defendant could return home to live with him.

20.The eldest daughter expresses concerns over the Defendant and she plans to live with her after her release from custody so as to provide her with a peaceful environment and psychological support. The Defendant’s youngest daughter also told the Probation Officer that she cares very much about the Defendant and would seek counseling service for her after her release and she would also provide the Defendant with more emotional support.

21.Insofar as the psychiatric reports are concerned, the conclusion reached by both psychiatrists is that the Defendant was acutely depressed with homicidal and suicidal tendency at the time of the offence, and that her husband seemed to have provoked her to a certain extent. However, her condition has improved with medication and she is now mentally stable. No further inpatient treatment is required although she should continue to seek treatment on an outpatient basis.

Sentencing Considerations

22.This is, no doubt, a family tragedy. Sentencing in this type of offence is always a difficult task.

23.In the present case, we have, on the one hand, the Defendant committing a serious offence by using a dangerous weapon to assault her husband, intending to cause him grievous bodily harm. The attack was mounted at night when her husband was asleep and basically defenceless. It should also be noted that the attack was aimed at the husband’s head which is, no doubt, a vulnerable part of the body. On the other hand, the Defendant was provoked and acted completely out of character. According to the information available, the attack was the result of the last straw owing to a long-term marital discord and the triggering-off event was the insulting words uttered by the Defendant’s husband and the attack on her earlier that day.

24.In SJ v Chau Wan Fun [2006] 3 HKLRD 577, the Court of Appeal, when dealing with another domestic violence case, observed that,

“23. When all is said and done, however, the courts cannot, and must not, lose sight of the gravity of an offence of serious violence by imposing a custodial sentence, as the judge in this case properly recognised was inevitable, which is so lenient that justice cannot be said to have been done. Bridge LJ, in R v Buchanan [1980] 2 Cr App R (S) 13 at 15 said :

“It is always sad when a case of this nature comes before this Court, where an offence of gross violence has been committed in a purely domestic context. It is by no means an unusual feature of such cases that the victim, after the event, has entirely forgiven the offender and is anxious to minimize the punishment he must suffer. … When such offences of violence are committed, whoever the victim may be, the matter is inevitably one of considerable public concern. The courts cannot regrettably be deflected from their duty of imposing sentences appropriate to the gravity of the offence when crimes of violence of this nature are committed against a domestic background.”

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25. … But domestic violence of the kind we see in this case, with ready resort to dangerous weapons, albeit under great pressure, is, we regret, too common and the result, as we see in this case, can be very grave indeed. …”

25.Although the Defendant’s family members are all supportive of the Defendant and beg, on her behalf, for leniency, this case is not just a family matter. The Defendant must understand that she has to bear the consequences if she commits a criminal offence, and such includes causing physical injuries to her husband, although at a time when she was provoked by him. Yet, I have not lost sight of the fact that the Defendant is a person of clear record and she has given her best to the family in the past decades, and that she was acutely depressed at the time of the offence as well as the fact that there was not much premeditation on her part.

The Sentence Imposed

26.Having considered all that was said on behalf of the Defendant and her background, and having taken into account the facts of this case, including the circumstances which led to the attack, the weapon used, the injuries sustained by the husband, as well as the fact that the husband has fully recovered from his injuries and has resumed work, I am of the view that a starting point of 30 months is appropriate in this case.

27.The Defendant pleaded guilty and she will be given a 1/3 reduction for her plea. In other words, I sentence the Defendant to a term of 20 months’ imprisonment for this charge. In respect of the psychiatric treatment she requires, I trust that appropriate arrangements will be made for her to receive the treatment while she is detained in prison.