HKSAR v. Wong Keung

DCCC 322/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 322 OF 2013

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of wounding, contrary to section 17(a) of the Offences against the Person Ordinance, Chapter 212.

2.In the afternoon of the 11 January this year Mr Wong went to the Aberdeen methadone clinic where he met the defendant.  Mr Wong demanded the defendant to repay $100 he believed the defendant still owed him.  When the defendant said he had already repaid an argument broke out in which foul language was used.  The argument ended when Mr Wong remembered that the defendant had repaid him.  Mr Wong then went into the clinic.

3.Nearly two hours later when Mr Wong was leaving the clinic he again met the defendant. The defendant asked Mr Wong to walk with him to have a chat.  Animosity soon arose between Mr Wong and the defendant during which the defendant suddenly took out a chopper and chopped Mr Wong’s left arm.  This resulted in a 1 x 8 cm laceration over the left upper arm requiring emergency wound exploration and 10 stitches, for which Mr Wong remained in hospital for two nights.  

4.Later in the evening the defendant surrendered to the police and handed in the chopper.  Under caution the defendant said Mr Wong discriminated against him because he was disabled and said he deserved to have throat cancer.  This angered the defendant who returned home to get a chopper intending only to frighten Mr Wong.  The defendant returned to the clinic and on seeing Mr Wong approached Mr Wong intending to reason with him.  When Mr Wong scolded him the defendant took out the chopper and chopped Mr Wong once.  The defendant returned home and having reflected on what happened realised he was wrong and surrendered to the police.

5.In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Chan together with the letter written by the Aplichau Baptist church.  In particular I take into account that the defendant has suffered from polio since childhood resulting in restricted movement of his left arm and in recent years was diagnosed with throat cancer.  Mr Chan submits the attack was not premeditated the defendant acting under repeated provocation about his disability and cancer.  In these circumstances Mr Chan submitted the proper starting point should be one of 18 months imprisonment.   

6.I adjourned sentence for Mr Chan to submit any authorities in support of what appeared to be a very low starting point, in particular considering that the Court of Appeal have said that sentences are usually in the range of 3-12 years imprisonment (see for example HKSAR v Hau Ping Chuen [2008] 4 HKLRD 673). Further as drawn to the attention of the parties that in HKSAR v Yu Yat Sang CAAR 2/2010 a starting point of 18 months imprisonment was said to be low for wounding contrary to section 19, where a similar injury was caused by a knife. 

7.I however accept that the overall circumstances of Yu Yat Sang were altogether more serious than the present case and that sentences of less than three years have been imposed, no doubt due to the differing facts and circumstances of each case. 

8.I have carefully considered the cases submitted to me by Miss Chan and Mr Chan.  Mr Chan lays particular emphasis on the decision in HKSAR v Yeung Kam Kwai CACC 458/2007 where the applicant who was 69 with no previous convictions, suffered from epilepsy which made him more susceptible to stress.  When the applicant, who lived in an old aged home, suffered from an epileptic fit another resident laughed at him and teased him about his illness.  The applicant brooded over the matter overnight and the next day decided to teach the victim a lesson and stabbed him causing eight wounds to the chest wall and both shoulders.  The Court of Appeal substituted a sentence which enabled the immediate release of the applicant who had served over 9½ months imprisonment.   As was pointed out in HKSAR v Wong Luk Sau CACC 2/2012 (submitted by Miss Chan) this was a very exceptional case.

9.In Wong Luk Sau the defendant used a knife to chase after a 78 year old, with whom he had a dispute over chess the day before, causing a stab wound 1.5 cm long under the left armpit and injuries to the left upper limb.  Taking into account the defendant was 72; had recently undergone a coronary bypass operation and had only one minor conviction for gambling the Court of Appeal said a sentence of 2 years and 3 months imprisonment was appropriate.  Mr Chan seeks to distinguish this case on the basis that the actions were premeditated; two knives were carried and the defendant chased after his victim.

10.Mr Chan also relies on HKSAR v Chan Mei Lin DCCC 191/2011 where a starting point of 2 years imprisonment was taken for an attack with a metal ladle resulting in a permanent 10% loss of vision in one eye. 

11.Considering these cases Mr Chan submits an even lower starting point of 15 months imprisonment is appropriate.  Whilst there are similarities with these cases the present case is in my view more serious.  Sympathetic with the fact the defendant has suffered from polio since childhood and has been diagnosed with cancer and that illnesses such as cancer cause stress these cannot in my view be mentioned in the same breath as Yeung Kam Kwai who was suffering from epilepsy or Chan Mei Lin who was suffering from borderline personality disorder.    

12.UnlikeChan Mei Lin where a metal ladle was used the defendant used a lethal weapon.  Inthe Secretary for Justice v Hung Kar Chun [2011] 1 HKLRD 1083 the Court of Appeal said that the courts would not tolerate attacking another person with a lethal weapon such as a chopper or knife on minor provocation or while having a dispute, and that the court would, in dealing with this kind of case, impose more severe punishment as a deterrence. 

13.The Court in that case, taking into account that it was an application for review said 2½ years imprisonment was appropriate considering the attack was not purely an unpremeditated case and the severity of the injuries.  This is to be contrasted with HKSAR v Chu Sze Wing CACC 289/2011 (drawn to the parties attention by the court) where the Court of Appeal said that 4 years imprisonment was appropriate where a chopper was used in circumstances where the attack was not premeditated and the injuries sustained were not serious.

14.In addition unlike the cases relied on by Mr Chan the defendant is not a person with a clear record.  Albeit his last conviction was in 1999 for trafficking in a dangerous drug and his last for violence in 1980 he does have a record for robbery and possessing an offensive weapon in a public place.  I also note save for Chan Mei Lin who was also 59 the applicants in Yeung Kam Kwai and Wong Luk Sau were aged 69 and 72.

15.Accepting the defendant acted under some provocation this is not a case where as in Chan Mei Lin the defendant goes to a nearby store and picks up a weapon or offhandedly picks up the chopper when engulfed in rage.  In Chu Sze Wing the Court of Appeal referring to the judgment of the court in the Secretary for Justice v Hung Kar Chun said that premeditation requires ‘afterthought’, that is some sufficient degree of deliberation or planning.  The defendant having gone home, collected a chopper and returned to the clinic about two hours later in my view shows that degree of deliberation. 

16.Mr Chan submits the defendant only intended to frighten Mr Wong and points to the fact that when the defendant saw Mr Wong again he did not immediately use the chopper but only after another dispute arose.  In my view the carrying of a chopper is a premeditated act.  Further the defendant at no time used the chopper to threaten Mr Wong.  The defendant simply took out the chopper and chopped Mr Wong’s left arm. 

17.Although the chopper was only used once the injury was a deep one and could have been more serious.  The update photographs produced to court show the likelihood of some permanent scarring however most fortunately the injury is confirmed not to be permanent with Mr Wong making a full recovery. 

18.Having carefully considered all the circumstances I am satisfied the proper starting point after trial is one of 3 years imprisonment.  Giving credit for the plea of guilty I reduce the sentence to 2 years imprisonment. 

Surrender

19.At the time the defendant surrendered his identity as the attacker was still unknown. Whilst the defendant and Mr Wong were known to each other Mr Wong was unable to give a name or address to the police.  No doubt a thorough search of the records of the methadone clinic may have revealed the name as may the interview of other patients of the clinic.  Although it cannot be said the defendant would not have been arrested had he not surrendered I am satisfied considerable police time has been saved and the defendant should be given additional discount in sentence in recognition of this.  In the circumstances I further reduce the sentence by 2 months to one of 1 year and 10 months imprisonment.

Health

20.I am told that the cancer is presently stable, the defendant attending regular follow up treatment.  There are no grounds to further reduce the sentence by reason of ill health.  Should the defendant’s health deteriorate in prison he should petition the Chief Executive for clemency.

Sentence

21.The defendant is convicted and sentenced to 1 year and 10 months imprisonment.