HKSAR v.s. Tsz Chung

DCCC213/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 213 OF 2011

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Reasons for Sentence

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1.The defendant was convicted upon his own plea of one charge of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap.212, Laws of Hong Kong.

Facts

2.On 20 December 2010, after having some beers, the defendant went to a lounge in Mongkok where he worked as a waiter and intended to pick up a girl, Miss Leung, who also worked there as a hostess.  The defendant regarded Miss Leung as his girlfriend, however, Miss Leung ignored the defendant.  

3.Around 4.30 am, Miss Leung left the lounge with two men including the victim of this case.  The defendant followed them.  After they had a dispute for about a minute, the defendant left. When Miss Leung and the men continued their way, the defendant suddenly rushed at them from behind. He attacked the two men with a chopper.  They had a struggle.  The two men eventually subdued the defendant.  They picked up the chopper and left in a taxi with Miss Leung.  The defendant returned to the lounge but when he left the lounge he collapsed and was sent to Kwong Wah Hospital for treatment. 

4.Under caution, the defendant admitted he had pushed and punched the two male customers who left with Miss Leung.  The customers retaliated and beat him.  He then returned to the lounge, grabbed a chopper and waved it in order to scare the male customers and injured the face of one of them.  The defendant said he committed the offence in the heat of the moment. He said he used the chopper because he was not able to win the fight with the two men.

5.The victim, a 28 year old man, was examined by doctor at around 4.47 am of the same day.  He was fully conscious upon admission into hospital.  He sustained a 3 centimetre laceration over his right forehead; he had abrasions over his right nose and lip.  There was a fracture line in the right frontal bone involving the right frontal sinus.  He received suturing on his right forehead, which was healed by 30 December 2010.

Criminal Record

6.The defendant has a clear criminal record.

Personal and family background

7.The defendant is 21 years old and single.  He ceased schooling in 2004, when he had not yet completed Form 2 education.  He was a waiter at the time of the offence and a delivery worker prior to his remand. He lives with his parents and a sister.  His 63 year old father has retired and suffered from pneumoconiosis.  His 62 year old mother is a cleaning worker and his sister is a saleslady.  He has another two elder sisters and one elder brother, all of them are living apart.

Mitigation

8.Mr Loftus, counsel appearing for the defendant when the defendant pleaded guilty, informed me that the defendant regarded Miss Leung as his girlfriend.  On the day in question, the defendant waited at the lounge because he intended to escort her home.  He has been suspecting Miss Leung of seeing other men.  While he was waiting he consumed cans of beer and Miss Leung played finger guessing games with two male customers.  Later, Miss Leung left the lounge with the two customers without speaking to the defendant.  The defendant chased after them.  Out of jealousy and suspicion and acting under the influence of alcohol, the defendant punched one of the two men, but the two men restrained him.  The defendant felt that he would not be able to win a fight against the two men, so he returned to the lounge and grabbed a chopper.  He only intended to scare the two men, but eventually he chopped one of the two men.

9.Mr Loftus submitted that:

1. Defendant had no premeditation for committing the offence.

2. He was just fueled by alcohol.

3. He had a truly clear criminal record as he had not even been cautioned by the police.

4. He was cooperative with the police.

5. He pleaded guilty.

6. It is unlikely for the defendant to re-offend.

He submitted that a short sharp sentence would be appropriate.

10.Today, Mr Chan, solicitor for the defendant, stressed the defendant was polite and sincere when he was interviewed by the CSD assessment officer.  He submitted that the court might consider calling for a Drug Addiction Treatment Centre report in light of the defendant’s drug addiction.  Even if a prison term had to be imposed, he urged this court to take into account of the defendant’s young age, the lack of serious harm to the victim and the provocation suffered by the defendant because his girlfriend was taken out by two men including the victim.

Pre-sentencing report

11.As revealed by the defendant himself, he started to abuse dangerous drugs since June 2009.  He took ketamine, “Ice”, and cannabis once a month and spent $700 each occasion.  His last dosage of dangerous drugs was on 15 June 2011.

12.The medical officer is of the view that he is a drug-dependant.  For this reason the Commissioner of Correctional Services considers him unsuitable for detention in a Detention Centre.

Reason for sentence

13.Wounding with intent is a very serious offence. The Court of Appeal has made it clear that the courts in Hong Kong would not tolerate attacking another person with a lethal weapon, such as a chopper or knife, on minor provocation while having a dispute and the courts would in dealing with these kind of cases impose more severe punishment as a deterrence, Attorney General v Low Wing Wah [1996] 1 HKC 345, Secretary for Justice v Hung Ka Chun, [2011] 1 HKLRD 1083 . 

14.The Court of Appeal had also stated that while no sentencing guideline could be laid down because each case had its own background and particular extent of injury, sentences for wounding with intent should be within the range of 3 to 12 years.  HKSAR v Yuen Wai Kui, CACC280/2004 and Secretary for Justice v Hung Ka Chun oft cited. 

15.In the present case, I have no doubt whatsoever the defendant was acting out of jealousy when he saw Miss Leung left him without saying a word with two male customers and acted out of frustration when he felt that he had lost his lover.

16.However, I reject right away the defendant was subject to any provocation by the victim and his friend.  They were just customers patronising the lounge and Miss Leung was receiving them.  Whatever purpose they have when they went out with Miss Leung, it was clearly Miss Leung was a willing and consenting party and it made no difference whether she was doing so in the course of her employment or due to her friendship with the victim or his friend.  The defendant was well-aware of the job nature of Miss Leung and he should not have any justifiable ground for feeling aggrieved with the victim and his friend.

17.It was said the defendant and Miss Leung had an intimate relationship.  Even if this was correct, the defendant was still at most a boyfriend of Miss Leung and he was not entitled to control her movement or interfere with her decision of going out with other men or leaving the lounge without informing him.

18.In my view, his jealousy and frustrations were all self-induced.  They could only explain why he committed this offence but do not amount to mitigation. 

19.On the other hand, there were aggravating features in this case.

1. The facts submitted by the defendant show that he did not commit the offence out of a spur-of-the-moment; he did not obtain the chopper at the scene off-handedily while he was arguing or struggling with the victim and his friend. According to his own admission, what happened was that after he had pushed and punched the victim and his friend, they retaliated and beat him, the defendant then returned to the lounge, took out a chopper and rushed toward the victim and his friend. There was clearly an element of retaliation in his action.

2. The chopper that the defendant equipped himself was indeed a very dangerous and lethal weapon. I examined the chopper. Its blade is 18 centimetres long and 7.8 centimetres wide.

3. During the course of the attack, the defendant must have struck the chopper at the victim’s forehead with considerable force. Not only did the victim sustain a laceration of 3 cm long over his right forehead, he also sustained a fracture line in the right frontal bone involving the frontal sinus. He was indeed extremely lucky that the victim did not sustain more severe injuries, but managed to have a full recovery within a short time of the attack.

20.In light of the facts of this case, I have no doubt that a custodial sentence is called for.  Mr Loftus urged me to consider a short sharp sentence.  Mr Chan asked me to consider detaining the defendant in a Drug Addiction Treatment Centre because of his drug addiction.  I have no doubt the Drug Addiction Treatment Centre is not an appropriate sentencing option.

21.The offence committed by the defendant was not drug-related at all and he had not been acting under the influence of drugs. Since the defendant is now 21 years and 10 months old, there are only two other possible forms of custodial sentences; (1) detention in Detention Centre and (2) imprisonment.

22.Since the Commissioner of Correctional Services had considered the defendant unsuitable for detention in Detention Centre due to his drug-dependency, it is not open to this court to make a detention order against him: section 4(4) of the Detention Centre Ordinance, Cap.239, Laws of Hong Kong.  For this reason, the only appropriate sentencing option is imprisonment.

23.Having considered the facts of this case, I adopt 3 years’ imprisonment as a starting point. 

24.I note the defendant committed the offence under the influence of alcohol.  However, influence of alcohol in the commission of an offence is not in general a reason for reducing a sentence especially for a serious offence: R v Liu Ping Kin [1993] 2 HKC 192. 

25.The defendant has pleaded guilty to the charge and he is therefore entitled to the usual one-third discount off the sentence. I also note that he has a true clear record in the sense that he has not even been cautioned by a police superintendent before.  However, after he has been given the one-third discount of the sentence by reason of his guilty plea, the authorities indicate that no further reduction of the sentence should be given on account of his clear record: Secretary for Justice v Ko Wai Kit [2001] 3 HKLRD 751, Secretary for Justice v Lee Cho Keung & others [2004] 5 HKC 179, Secretary for Justice v Chau Wan Fun [2006] 3 HKLRD 577.

26.I note the defendant was only 21 years and 4 months old at the time of the offence.  He was of course young but he did not fall within the extreme youth category to whom the court may exercise a larger degree of leniency.

27.Mr Chan also referred to the defendant’s depression.  However, the defendant had that depression in 2003 and he had received treatment for a year.  The present offence occurred in December 2010. I do not see the correlation between his depression and the commission of the present offence.  Hence, no reduction of sentence will be given in this regard.

28.Now, for the above reasons, in my judgement, other than the defendant’s guilty plea, there is no valid mitigating factor. It is also not open to this court to consider suspending operation of the prison term because wounding with intent is an excepted offence.  In any event, there is no mitigating factor upon which I can validly double its mitigating effect to order a suspension of the prison sentence.

29.For these reason, the defendant is sentenced to 2 years’ imprisonment.