HKSAR v. Tong Wah

DCCC 767/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.767 OF 2013

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Reasons for Sentence

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1.The Defendant faced one charge of wounding with intent contrary to s.17(a) of the Offences Against the Person Ordinance, Cap.212. He pleaded not guilty to the charge but guilty to the lesser charge of wounding under s.19 of the same Ordinance. The prosecution accepted his plea to the lesser charge and the defendant was convicted accordingly.

Summary of Facts

2.D and one Mr. Lau lived in Room 1 and 2 respectively in a multi-cubicle apartment located at 1st floor, no.158 Yee Kuk Street, Sham Shui Po.

3.In the evening of 29 May 2013, Lau brought home a friend for a sleep over. Lau slept on the bed while his friend slept on the floor. Their door was kept open when they went to sleep at around 5:45am.

4.While Lau was asleep, he suddenly felt pain on his left shank. He opened his eyes and saw the defendant holding a chopper in the course of attacking him. Lau immediately fended off the defendant with his left hand.

5.The defendant then pointed the chopper at Lau and swore at him. Lau and his friend managed to push the defendant out of the room and closed the door. A report was made to the police. The defendant had already left the premises when police arrived.

6.Police officers later found the defendant wandering around the Yee Kuk Street area at around 6:50am. Upon enquiry, the defendant admitted to injuring someone of Room 2 with a chopper. The defendant was arrested and cautioned. Under caution, he  admitted to chopping Lau out of anger as Lau accused him of stealing.

7.The chopper was recovered from the canopy between ground and first floor of No.1 Yee Kuk Street.

8.In his subsequent cautioned interview, the defendant admitted that the chopper recovered from the canopy belonged to him and that he had used it to chop Lau. The defendant said he first chopped Lau's leg and Lau fended off his second blow with his hands. The defendant left the flat at once after the attack and threw the chopper down to the canopy on the way.

9.Lau was found to have 2 lacerations to his left shin, one 5 cm with muscle tear, one 1.5cm deep with oozing. There was also a 1cm deep laceration on his left index finger with tendon being exposed.

Previous Convictions

10.The defendant has 26 previous convictions. There is one similar conviction back in 1964 when he was bound over. The only other conviction involving violence was back in 1964 when he was also bound over for assault occasioning actual bodily harm. His last conviction was in June 2007 for possession of dangerous drugs when he was sentenced to probation.

Mitigation

11.The defendant is 66 years old. He was born in Hong Kong and educated up to Primary level. He has 10 siblings. His parents passed away when he was young. When he was a teenager he cohabited with his girlfriend. This relationship lasted 30 odd years. There is a son born to them, who became estranged in his teenage years. The defendant had stopped seeing him since then and had not maintained any contact. The defendant’s girlfriend passed away when the defendant was 30 years old.

12.The defendant was married earlier this year to a mainlander. The defendant started to receive social security when he was about 55. He started to live in the cubicle 9 years ago, peacefully, until Lau moved in as his neighbour. According to the defendant, this Mr. Lau would without consulting him go into his cubicle to watch television and would sometimes take away noodles, milk and saucepan without first asking him.

13.The defendant had talked with Lau about it but to no avail. Lau even accused the defendant of not being generous enough.

14.On the day in question, the defendant found a packet of noodle was missing, and he believed that it was taken away by Lau. I was not told when he found the noodle missing. After thinking for a long time though, the defendant eventually went to talk to Lau and they ended up in an argument. In the argument, Lau accused the defendant of stealing his things instead. Mr. Leung cannot assist the court on when that argument actually occurred.

15.The defendant was angry at that time and eventually he took out the chopper and committed the present offence. After the offence, the defendant was very frightened and did not know what to do. When apprehended, he cooperated with the Police right away.

16.According to the report of Dr. Wong Sze Hung who treated Lau on the same day, there appears to be no permanent long term damage to the finger of Lau and the laceration to his left shin is described as ‘superficial lacerations’ with only skin suturing required.

17.Mr. Leung then referred to the case of HKSAR v Yeung Kam Kwai, CACC 458/2007. There the appellant pleaded guilty to a s.17(a) charge, he was sentenced to 22 months’ imprisonment at first instance. The facts of that case are that the appellant suffered from epileptic fits for a few times and the victim laughed at him and teased him about his illness. The appellant brooded over the matter overnight and decided to teach the victim a lesson. The next morning, he took 3 knives, 2 in his left hand, went to the victim’s room and stabbed his back with the knives. On appeal, the Court of Appeal found the original sentence manifestly excessive given the circumstances of that case and allowed the appeal and ordered the immediately release of the appellant.

18.In our case, the defendant was bullied, it was an isolated incident of a loss of temper and was an out of character act by the defendant. There is no similar medical condition as the appellant in Yeung Kam Kwai nor is the defendant of previously good character.

Sentence

19.The maximum sentence for wounding under s.19 is that of imprisonment for 3 years.

20.The summary of facts that the defendant had admitted to states that the defendant had attacked Lau when Lau was asleep, therefore any argument that the defendant may have had with Lau must have been before Lau fell asleep. The defendant would have had plenty of time to calm down and consider his action. Yet, despite the availability of that opportunity, the defendant decided to take revenge with a chopper. I find that the attack was premeditated and unprovoked despite what Mr. Leung said in mitigation.

21.Mr. Lau was sleeping when he was first attacked, which made the attack more dangerous because he did not have a chance to protect himself from the first blow.

22.The attack was with a chopper, which is a common piece of kitchen utensil in Hong Kong but which can cause serious harm when used as a weapon.

23.I find that the culpability of the defendant lies not only in the seriousness of the injuries he caused but also the circumstances of causing them. To chop a defenceless person in his sleep is a cowardly act and must be viewed as a very serious transgression of the law. Both Mr. Lau and the defendant are fortunate that Lau did not suffer more serious injuries.

24.The use of a chopper to attack someone in his sleep just because he had had an argument over some trivial matter is wrong and, given the crowded living conditions in Hong Kong, must be deterred.

25.In relation to the case of Yeung Kam Kwai relied on by Mr. Leung, as the Court of Appeal said at paragraph 15, it was a “very exceptional case” and should be distinguished from our present case. Furthermore, 2 of the factors considered as important there do not exist in our present case. As I said above, there was no provocation and the defendant is not of previously good character, although his convictions were mainly in relation to dangerous drugs in the later years.

26.Having said that, the defendant’s last conviction was back in 2007 and as such I do not find his lengthy record as an aggravating factor.

27.I find that given the circumstances of the case, a proper starting point is that of 2 years and 3 months' imprisonment. Given the guilty plea of the defendant, he is sentenced to 18 months' imprisonment.