HKSAR v. Tidoy Primitivo Asuncion

DCCC 55/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.55 OF 2013

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REASONS FOR SENTENCE

1.The defendant was convicted, after trial, of an offence of "Wounding with intent". The victim was stabbed on his left abdomen by the defendant using a foldable knife.

2.About 10:00 pm on 4 November 2012, PWs 1, 3 and 4 (Mr. Shoukat Khan, Mr. Wahid Khan and Mr. Nawaz Muhammad), who are friends, were minding their own business in the vicinity of Ground Floor, No.3 Li Yuen Street West, Central.  They were waiting for PW1's uncle to come down from his shop situated at the 2^nd Floor.

3.Whilst they were waiting, there was an altercation between PW1 and a Filipino trio (which consisted of 2 males and 1 female).  A Filipino male of that trio (later identified as the defendant) accused PW1 of throwing glass bottles at them.  PW1 walked towards the defendant trying to explain that they did not throw any bottles.  Suddenly, the defendant took out a knife and struck PW1 on his abdomen. PW1 started to bleed and the defendant ran towards Queen's Road Central.

4.PW1 was sent to Queen Mary Hospital shortly after the incident.  PW2 (Dr. YIP) found l laceration of about 1 cm long on PW1's left abdomen.[1]  An emergency laparotomy was performed on PW1 in order to stop the internal bleeding in his peritoneal cavity and to repair his torn spleen and abdominal muscle.[2]

Mitigation & Sentence

5.The defendant is now 46 and has a clear record. According to his employer's letter, the defendant has been working for the same family as a foreign domestic helper since 1990.  His employer speaks highly of him, describing him as "always polite, helpful, loyal and accommodating".

6.Defence counsel Ms. LAI informed me that the defendant has a daughter (2.5 years old) with his girlfriend; both of them are in the Philippines.  Ms. LAI submitted that it was not a pre-meditated attack on PW1; the assault must have taken place in the heat of the moment.  The defendant does not know any of the Pakistani men; what he did was completely out of character.

7.The defendant stabbed PW1 once and left a 1 cm wound on his left abdomen.  However, that 1 cm wound resulted in internal bleeding in PW1's peritoneal cavity and a torn spleen.  After his surgery, PW1 was transferred to the Intensive Care Unit for observation.  He was transferred to the general ward on 5 November.  He recovered uneventfully and was discharged from the hospital on 8 November.[3] In other words, PW1 spent a total of 4 days in the hospital.

8.I accept that this case might have arisen from some on-the-spot disputes between the defendant and PW1; and that the attack on PW1 was probably not pre-meditated.  However, the defendant having carried with him a foldable knife does cause me some concern.  I am aware of the size and nature of that knife (which is, fortunately, not a spring knife), but I do not see the need for him to carry it.  In any event, there is no evidence as to why he carried it with him on a Sunday evening.

9.It is plain that no one is allowed to take the law into his own hands. Even if glass bottles were thrown at the defendant, there were lawful means for him to resolve the matter. What the defendant did was brutal and uncivilized. PW1's injuries were no doubt serious, needless to say the pain and suffering as well as the agony arising from this traumatic experience.

10.It is most fortunate that PW1 has recovered fully and sustained no permanent injuries. However, stabbing someone at his abdomen may very well be fatal. Serious injuries and even fatality must have been foreseeable by the defendant at the time of launching the attack.

11.Sentencing of wounding offences is case specific and there is no tariff as such; however, sentences in the range of 3 to 12 years' imprisonment are by no means uncommon. Mr. Hotten and Ms. LAI have each cited an authority[4] for my reference. I am grateful for their assistance, but do not find either case particularly helpful.

12.Having considered all aspects of this case, I take the view that a starting point of 3.5 years' imprisonment is appropriate. I have borne in mind the defendant's clear record as well as his long and stable employment history in Hong Kong. I also accept that this is an isolated incident and the defendant's single fall from grace. I am prepared to grant him a 6-month discount to reflect all that. The sentence I pass is 3 years' imprisonment.