HKSAR v. Sato Phenphun

DCCC 522/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 522 OF 2011

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Reasons for Sentence

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Charge

1.The Defendant is convicted after trial of wounding to do grievous bodily harm, contrary to section 19 of the Offences against the Person Ordinance, Cap. 212.

Case found

2.Both the Defendant and SINGWONGSA Ninlada (“Victim”) are Thai females.  In the early morning on 7 April 2011, whilst dancing on the crowded dance floor at Joe Bananas Bar (“Joe Bananas”), the Victim bumped the Defendant.  After the Victim had returned to her table, the Defendant approached her from behind.  When the Victim happened to turn her head, her left cheek was struck by the Defendant with a liquor glass in an uppercut motion of the hand.  The Defendant fled and the Victim chased up.  She lost track of the Defendant.  The security guard assisted the Victim by calling the ambulance and the police.  No glass fragments could be found.  She suffered a 6 cm long laceration wound on the left cheek.  It was stitched up in 17 stitches.  It looked gruesome when photos were taken shortly after the attack and after the first couple days of medical treatment.  She was 35 years of age at that time according to the medical report [P2].   

3.Two days later, in the early morning on 9 April 2011, the Victim managed to locate the Defendant in Neptune II Bar, which was in the vicinity of Joe Bananas.  She reported it to the police.  The police arrested the Defendant outside Neptune II.  She made admissions in a record of interview (“Record of Interview”) under caution.  The Record of Interview was admitted into evidence after a challenge of its admissibility.

4.She has continued to receive medical treatment in Thailand.  It looks no longer gruesome but still visual at close range when she gives evidence in Court.  The prosecution has applied for compensation to the Victim for medical bills paid in the sum of $10,347.50 in treatment of her injury.  The Defendant has paid this sum into court as ordered.  

Defendant’s personal background and mitigation

5.The Defendant is 49 years of age. She was a Thai national.  Her 2 adult sons from her previous marriage are living in Thailand with her mother.  She remits money regularly to support her mother.  She married her present husband in 2004.  He has a busy working schedule which frequently takes him outside Hong Kong.  She visits the Wanchai bars to socialize when they were apart. 

Sentencing considerations

6.There are no sentencing guidelines.  The defence has summarized 4 cases bearing comparable facts as follows:  

(1) In Lam Man Yung v The Queen CACC 318/1968, the appellant and the victim were bar girls in constant conflicts of violence. Here the appellant waylaid the victim with a razor to slash her face near the eyebrow, resulting in a 1-inch long cut on the eye lid and a 2.5-inch long cut on the cheek. The underlying muscle of the cheek was severed. The injury was described as “dreadful” and “unsightly”. There would be permanent disfigurement unless she went for plastic surgery. There was some uncertainty as to the appellant’s age due to incomplete documentation but she appeared to be around 14. Given her young age and plea of guilty, the judge on appeal substituted the magistrate’s sentence of 2 years by 1 year. This reflected a notional starting point of 1.5 years.

(2) In HKSAR v Au Yeung Chu CACC 115/2002, the applicant’s husband had apparently a clandestine relationship with the victim. Out of jealousy the applicant slapped the victim on her cheek and hit her ear. Her cheek was lacerated by the diamond ring the applicant was wearing; there were a 5 cm and a 1.5 cm wounds. Her ear received a 1 cm cut by a sharp object believed to be from a manicure set the applicant happened to have. Her left hand raised in defence had the thumb lacerated by 2 cm and a digital nerve severed, resulting in permanent numbness of that spot. The victim’s attitude was said to be forgiving. The starting point of 9 months was regarded as nothing manifestly excessive.

(3) In HKSAR v Kwok Lan Bun HCMA 572/2004, the appellant inflicted upon a fellow prison inmate a puncture wound of 1 cm in diameter with a broken ball pen of about 3 cm into the right forehead region, and three dotted abrasions over the left cheek and left ear region. The magistrate’s starting point of 9 months was commented as possibly erring on over-leniency.

(4) In Secretary for Justice v Yiu Man Chun CAAR 14/2010, the respondent pleaded guilty to the false imprisonment and the wounding of his girlfriend. They had a stormy relationship which ended up in his repeated use of violence on her. She was detained for 9 hours amidst threats and actual cuts on her face and neck with a cutter. She suffered post-trauma disorder which would take long-term psychological treatment to heal. The Court of Appeal considered his repeat violence on her and the subsisting impact on her to be aggravating features. The charge of false imprisonment was sufficient to encompass the wounding as the incident could be viewed as a single one. Concurrent sentences were passed. For computation purpose, the starting point of 4.5 years was adopted for the false imprisonment whereas the 18 months was affirmed for the wounding.

Sentencing this Defendant

7.The Defendant had struck her once with a liquor glass held in her hand as she approached the Victim from behind. She was furious for being bumped by the Victim.  The Victim is now 36 years of age.  She has undergone certain plastic surgery but still carried a scar visible at close range.  There is no telling whether this is the best state to be achieved.  Compensation in the sum of HK$10,347.50 for medical expenses has been made into Court.  I take 9 months as the starting point.  One month off for the compensation made, the sentence is 8 months.