HKSAR v. Ng Yu Kwan

DCCC 1281/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1281 OF 2010

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Reasons for Sentence

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Charges

1.The Defendant was the boyfriend and cohabitant of the female victim (“Victim”).  One evening when she was about to go out to meet her friends, he forbade her to go.  He locked her up (1^st Charge, false imprisonment) and assaulted her that evening and the next day (2^nd and 3^rd Charges, assault occasioning actual bodily harm on each date).

False imprisonment and assaults

2.At around 8:30 p.m. on 18 September 2010, the Victim returned to the suite co-occupied with the Defendant.  She had to go out soon to celebrate her birthday with friends.  He asked her for money.  She could only give him $100. Discontent with the pittance, he took away her cell phone and Octopus card.  He locked the door.  He assaulted her.  He took off her clothes so that she could not get near the window for help.  Hecut her hair with scissors.  She screamed.  He covered her mouth with a quilt.  She resisted with a hanger.  He pressed her neck with an aluminum pipe to make her stop screaming.  She kicked him on his private parts.  Soon they fell asleep. 

3.At around 2:00 a.m. the next day, she woke up and wanted to use the bathroom.  He thought she was fleeing.  She said she had rather die than stay with him.  He poured Dettol into her mouth.  She resisted.  He poured bleach into her mouth.  She resisted at first but then opened her mouth.  He helped her rinse and spit out the bleach.  He turned to gulp bleach himself but she stopped him.  Soon they got off sleeping. 

4.At around 5:00 a.m., she woke up and tried to flee through the window. He used a towel to strangle her from behind.  She almost blacked out.  He cried and then fell asleep. 

5.At around 6:30 a.m., she threw rescue notes out of the window.  The watchman was alerted.  The police were summoned. 

Injuries

6.The Victim suffered slight injuries.  There were redness and tenderness over left ear, subconjunctival haemorrhage over left eye, erythema over chin and anterior upper chest wall, bruise over right upper limb, and tenderness over scalp, neck, sternum and chest wall.

7.The Defendant suffered slight injuries.  There were abrasions on back, shoulder, left waist, right hand and left leg. 

Defendant’s response to police

8.After arrest and caution, the Defendant first denied but later admitted detaining and hitting her. 

Personal background and mitigation put forward

9.Before sentencing, I have called for a psychological report on him.  He is 38 years old, a casual worker.  His monthly average is $3,000.  He has to spend $150 per day on illicit drugs.  He has records for drugs and thefts but none for violence. 

10.His counsel informs me that he had had supper and consumed a bottle of red wine before returning to the suite.  He wanted to celebrate with the Victim but he had neither plan nor money.  He just could not bear the thought of her dining out with her friends.  He realized she was soon going to separate from him.  He totally lost himself.  He is assessed to be an irresponsible, manipulative and selfish person.  He is suffering from antisocial personality disorder, which is a pattern of disregard for, and violation of, the rights of others.  He has a moderate to high tendency to commit crimes of violence. Psychological treatment focusing on the criminal attitudes, substance abuse and anger management is highly recommended.

11.The prosecution has ascertained from the Victim her present condition. She feels no longer distressed by the incident.  There is no prospect of repairing the relationship, though. 

Sentencing considerations

12.The core culpability here lies in the false imprisonment.  The assaults were but incidental.  False imprisonment sentencing has no tariffs.  The customary sentence is imprisonment.  There are some examples. 

(a) In HKSAR v So Tang Fat CACC 183/1997, the 1^st applicant was convicted after trial of, acting together with others, the false imprisonment of the victim for 40 hours pending repayment of a usury. The trial judge considered that his involvement had been minor and he had used neither violence nor intimidating expressions on the victim. He was sentenced to 24 months. The Court of Appeal affirmed the sentence.

(b) In HKSAR v Bhupinder Singh HCCC 313/2009, the defendant ambushed and abducted his girlfriend, who had determined to cease seeing him since a few days ago, into a wooden hut. He detained her overnight through Sunday, her rest day, to Monday. She was a domestic helper. She had to report to duty on Monday. He softened up and accommodated her when she expressed great worries of her employer fidgeting over her whereabouts. He escorted her back to see her employer. The court adopted a starting point of 30 months.

(c) In HKSAR v Yau Chun-man DCCC 840/2008, the defendant detained the victim until his family repaid his gambling debts from Macau. The court adopted a starting point of 2 years.

(d) In HKSAR v Chan Sai Tong DCCC 989/2009, the defendant tied up and gagged two salesladies present in the shop. He asked them to get the shop owner to meet him as he had a score to settle with the shop owner’s husband, who operated a successful gambling business in Macau. He lost his wife and son because he had lost at gambling. Not long afterwards and before anyone came to meet up, he fled. The court took a starting point of 18 months.

(e) In Tang Tsz Yeung DCCC 375/2010, the defendant was unable to accept his separated wife’s going out with another male. He forcibly took her onto a van. She was assaulted on board. Later she asked him to have a talk in her parents’ home. He came back to his sense and agreed. The court took a starting point of 18 months for the false imprisonment charge.

(f) In HKSAR v Lui Chun-wa DCCC 802/2010, the court drew from the case of HKSAR v Lim Hai Bun, Benny CACC 213/1999 to take a starting point of 3 years for a detention to enforce repayment of a Macau gambling debt.

Sentencing this Defendant

13.The Defendant was desperate to keep her a little longer than she had cared to stay.  At the end he had lost her forever.  He was confused.  He had tried to pour Dettol and bleach into her mouth.  He had tried to help her rinse out the bleach.  He had tried to strangle her.  He had tried to drink bleach himself.  He needs no in-house psychiatric treatment but his mental state is extremely fragile.  If there is any deterioration of his mental state, this can be taken care of by internal removal from the prison to the mental hospital under section 52 of the Mental Health Ordinance, Cap. 136. 

14.I take 2 years’ imprisonment as the starting point for each charge. After the one-third discount due to his pleas of guilty, the sentence is 16 months each, to be served concurrently.