HKSAR v. Wan Sheung Shing

DCCC 1295/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1295 OF 2011

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of wounding with intent, contrary to s.17(a) of the Offences Against the Person Ordinance, Cap.212.

Summary of Facts

2.The defendant traded words with a few males while walking near his home and a dispute ensured between the parties. Police came and the matter settled. One of the males however later followed the defendant home to find out where he lived. He even entered the lift together with the defendant.

3.About two and a half hours later, the defendant appeared downstairs of his building and saw the males again. According to the defendant, they surrounded him and attacked him and scolded him. The defendant took out a hammer from under his shirt and hit the victim’s head twice and kicked him while the victim slipped and fell.

4.Another male waved a wooden pole at the defendant. The defendant managed to take the pole and chased after that male. Police arrived shortly afterwards. The defendant was still holding the pole when they arrived, while the hammer was placed beside the defendant. The defendant cooperated with the Police and surrendered the wooden pole. Under caution, the defendant said he took the hammer from home for self-defence. He also admitted to hitting the victim’s head with it.

5.The victim was hospitalized for 10 days. He suffered from a 4 cm laceration on the right side of his head. CT scan revealed compound depressed skull fracture at his right front parietal region with cerebral contusion at the region. There was also mild contusion of the underlying brain tissue. The victim’s left wrist and hand grip power was graded as zero and he was referred to occupational therapy. The weakness is not permanent but was expected to last for some time.

6.The defendant himself suffered a 4 cm laceration over his right forehead in the incident. He was treated and discharged on the same day.

Previous convictions

7.The defendant has 10 previous convictions all relating to gambling. There is no previous history of violence.

Mitigation

8.The defendant is 53, married. His wife is in court to show her support. They have 2 sons, 19 and 21. The elder one is working as an accounts clerk earning about $8,000 per month, the younger son is studying in a vocational course and he is also aiming to enter the accounting business.

9.The defendant is educated up to primary 6 level in mainland China. He came to Hong Kong in 1980. He worked as a warehouse keeper for 2 years earning about $1,000 per month. He worked as a part time casual transportation worker earning about $150 per day.

10.In 1987 the defendant got married. He started to work in a knitting factory, earning about $4,000 per month. Thereafter, he switched back to the transportation industry, earning about $250-$300 per day, roughly $7,000 per month.  All along, with that income, he supported his family, while his wife stayed home to take care of the 2 sons.

11.In 2004, the defendant was diagnosed as suffering from heart disease, preventing him from doing strenuous activities. The defendant had to stay home and his wife went out to work to support the family. The defendant received CSSA for several years when his wife was unemployed. Last year, his wife was able to find employment as a waitress earning about $7,600 and the CSSA stopped.

12.The defendant had all along been leading a decent life. He and his wife worked hard to support their 2 sons. The previous convictions of the defendant are minor and wholly unrelated to violence. More importantly, the last one was back in 1997. He is practically a first offender.

13.On the day in question, he was followed by someone into the lift and that person wanted to find out where the defendant lived. The defendant felt his safety was threatened. The defendant was worried about his safety and that was why he was carrying the hammer when he went downstairs on his way to top up his SIM card.

14.The defendant was scolded by the 3 men. One of them pushed him. Because of that provocation and the defendant’s fear that he would be attacked, he used excessive and disproportionate force to fight back. The defendant just lost control. The attack was not premeditated.

15.After that, another male waved a wooden pole against the defendant. The defendant committed the offence in a chaotic situation which took place in a very short time. Mr. Chui submitted that this case is on the lesser scale of seriousness.

16.There are no sentencing guidelines. The sentence must depend on the facts of the individual case. The defendant himself suffered some injury.

17.The defendant is remorseful about the incident. He is prepared to offer compensation in the sum of $5,000 to the victim. The victim’s updated medical report indicates that, up to 8^th November 2011, his left upper limb power increased up to 4+ out of a scale of 5. There is no permanent injury to him.

18.In mitigation, Mr. Chui pointed out that the normal sentence in relation to a s.17(a) offence is a term of imprisonment. It is an excepted offence. It is Mr. Chui’s submission that there are exceptional circumstances in this case to justify a Community Service Order, citing the case of Secretary for Justice v Lin Min Ying and others [2002] 3 HKC 415 in support. I however disagreed with his view and I did not order a CSO report.

Customary Sentence and provocation

19.The customary sentence for a s.17(a) offence ranges between 3 to 12 years: Sentencing in Hong Kong, Cross & Cheung, 6^th Edition.

20.In the case of HKSAR v Yuen Wai Kui, CACC 280/2004, the applicant was a former employee of the victim who was owed wages. On the day of the offence the two of them had a dispute in a restaurant. The applicant went downstairs to leave and the victim followed him. It was the applicant’s case that the victim threw the first blow. The applicant reacted and retaliated, using force wholly out of proportion to the situation, causing the victim to be seriously injured and had since remained in a vegetative state.

21.The Court of Appeal took the following into consideration. The applicant was a father with a young child. He was the main support of his family.  He had been under substantial stress and was fearful of relapse.  He was owed a substantial sum of money by the victim who started the fight.  The applicant left the restaurant pursued by the victim.  The applicant stayed at the scene and was cooperative with the police, just as the defendant did in our case.

22.The applicant was a responsible and self-reliant person.  According to the probation report, he stopped receiving CSSA on 31 July 2002 voluntarily.  He preferred to work to support the family despite the fact that he was suffering from cancer.  His wife also worked to support the family.

23.The Court then find that the original starting point of 15 years’ imprisonment adopted by the learned trial judge was too high and not justified by any need for deterrence.

“22….The question here is : given that range, what is the appropriate sentence? This was an unpremeditated crime. He was provoked by the victim. However, the defendant’s retaliation was totally out of proportion. The victim has been gravely injured and would suffer for the rest of his life. The sentence must reflect the seriousness of the consequence.”…The circumstances of this case are highly unusual and what the applicant did was entirely out of character.”

24.The Court of Appeal adopted a new starting point of 7½ years, after allowance for the plea of guilty, sentenced the applicant to imprisonment for 5 years. Although the facts in this case are far more serious than our present case, the fact that the applicant was provoked can be a mitigating consideration is important to note.

Sentence

25.The defendant is 53 years old. He has no previous history of violence. The attack was totally out of character.

26.On the day of the offence, the victim decided to follow the defendant  right into the lift when the defendant was going home. It is entirely understandable that the defendant feared for his own and his family’s safety.

27.The commission of the offence is however aggravated by the use of the hammer. Even if I accept, which I do, that it was the males surrounding the defendant who attacked the defendant first when the defendant came downstairs, the defendant’s reaction was totally out of proportion. It is fortunate that the victim did not suffer more serious injuries or permanent damage from the attack to his head.

28.I find that in the circumstances a proper starting point is that of 3 and a half years’ imprisonment. I will lower this starting point slightly by 3 months in recognition of the defendant’s previously good record which, given his age is significant indication of his good character. I will grant the defendant the full one third discount upon his guilty plea, resulting in the final sentence of 26 months’ imprisonment.