HKSAR v. Tsoi Chi Ming

HCCC 308/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 308 OF 2014

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S E N T E N C E

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1.The defendant pleaded guilty to wounding with intent, contrary to s 17(a) of the Offences Against the Person Ordinance, Cap 212. The particulars of the offence were that on 3 January 2014, the defendant, in Sham Shui Po, Kowloon, unlawfully and maliciously wounded a female work colleague with intent to do her grievous bodily harm.

2.The defendant is a young man who was 25 years old at the time of the offence.  The victim was a female work colleague and 46 years old.  They worked together at a Wellcome Supermarket where the victim was his supervisor. It appears the defendant was attracted to her and after they got better acquainted, the victim would from time to time borrow money from him. She repaid him the money but he continued to transfer the sum of $3,000 every month to her even though she told him not to do so.  The victim was transferred to another supermarket and the defendant later took up employment at a computer centre.  However, he continued to send her text messages and wait for her outside the building where she lived to see her.  She told him not to bother her, and  then started to press her for repayment of the money that he had transferred to her account.  He kept sending her text messages but she ignored him.

3.The victim, although married, was having a relationship with another man.  On the day of the offence, the victim had gone out with her male friend and as she was arriving home, the defendant confronted them and hurled abuse at them.  He used his mobile phone to film them together and told the victim that he would send the recording to her husband.  Her male friend left and she continued to walk home.  The defendant followed her, and swore at her, and started pulling her hair and hitting her head.  She tried to get into her building but he blocked her way and slapped her face.  She pushed the defendant away and ran to a nearby road to look for her husband.  The defendant caught up with her at the entrance of a playground.  He grabbed her by the hair, pushed to the ground and sat on her waist.  There was a struggle between them and he produced a fruit knife and thrusted it at her.  She tried to ward off blows with her left hand as he tried to cut her neck.  He cut her hand and slashed the right side of her neck.

4.A member of staff of the playground heard the commotion and went to the scene. She saw the defendant sitting on top of the victim who was lying on the ground.  She asked the defendant what had happened and he told her to call the police.  She immediately went for help and saw two police officers nearby and alerted them of the incident.  When the police officers arrived, the defendant was still sitting on top of the victim.  One of the police officers took out his baton and demanded the defendant to drop his knife.  The defendant refused and said he wanted the victim’s family members to come there. Another police officer arrived and the defendant was again warned to drop his knife.  This time he did as he was told.  He was subdued and arrested.

5.The victim was immediately taken to hospital for treatment.  It was noted that she sustained a 5 cm laceration over the right side of her neck with arterial bleeding and lacerations to her fingers.  She was admitted to the Intensive Care Unit and underwent emergency surgery.  Emergency neck wound exploration, haemostasis and suturing was done. There were two penetration wounds over the right side of the neck, the sternocleidomastoid muscle was partially cut and the right side strap muscle was cut.  There was approximately 2 mm active spurting vessel deep into the sternocleidomastoid muscle and medial to palpable carotid pulse. Wound exploration and tendon repair was also performed by an orthopaedic surgeon.  There was a complete cut of the flexor digital profundus tendon of her left middle finger.  She was hospitalized for 8 days.  She underwent further surgery on her left middle finger in May 2014 and received outpatient rehabilitation which continues.

6.In mitigation, it had been put to me that the defendant is a young man who became infatuated by the victim.  He had come to Hong Kong from Mainland China and struck a friendship with the victim.  They were work colleagues at Wellcome Supermarket.  The victim is married but the defendant was given the impression by her that she had an unhappy marriage and had incurred debts because her husband was a gambler.  The defendant worked at the supermarket from December 2011 to July 2012 as a shop assistant and after that he worked as a salesman at a computer centre.  At the time, he was earning about $8,000 per month.  In about March 2012, the victim asked to borrow money from the defendant.  He gave her $3,500.  It is submitted that the victim lead him to believe that he was special and that they were couple.  From April 2012 to June 2013, the defendant transferred $4,500 every month to the victim to help her clear up her debts.  The monthly payments continued even after he left the supermarket in July 2012.  It is submitted that he gave her about $90,000 which is still outstanding.  It was pointed out that he was not earning very much and this was a lot of money to him.

7.The defendant seems to be a young and gullible man who became infatuated by the victim.  It also seems that the victim used him by leading him on and getting money out of him.  In September 2013, he found out that she was dating another man, and this clearly enraged him.  It would appear that he wanted to hurt her because of her rejection of him.  This was evidenced by the incessant messages to her and her daughter and the confrontational meetings he had with the victim.  On the night he had attacked and injured the victim, he asked for her family to come and see her.  He wanted to hurt and humiliate her.

8.The defendant said when he was interviewed that he was attracted to the victim and felt cheated when he found out she was having a relationship with another man. It was then that he started to press for repayment of the money that he had given her, sending messages to her and her daughter.  He claimed that in the evening of the day of the incident he was intending to look for her husband but found her with the other man instead. He claimed that he took out the knife and cut the victim’s face and it was during the struggle that he accidentally cut her neck. 

9.I do not accept this claim even though it appears in the summary of facts. I have viewed the photographs of the injuries to the victim.  They are significant injuries that must have been administered with force to the region of the victim’s neck.  There are two injuries to the right side of her neck.  One is underneath the jaw line and the other is across the right side of the neck and runs for about 5 cm.  The victim also sustained a defensive injury to her left finger when she tried to ward off the blows from the defendant he was administrating with the knife to her neck.  These were serious injuries. 

10.I have been provided by the defence with a list of cases where the defendant in each case who appears to be a male was embroiled in a relationship with the victim and the victim had rejected the defendant who in a highly emotional state attacked the victim with a weapon, usually a knife, resulting in serious injuries to the victim.  The starting point imposed in the cases submitted where serious injury resulted ranged from 3 to 8 years’ imprisonment, but as has often been stated, each case very much depends on its own particular facts.  It is generally disavowed when sentencing not to follow the sentence imposed in another case because it is fact specific and the better course is to determine the sentence by applying relevant sentencing principles to the facts and circumstances of the case and the offender, thereby ensuring that the right sentence is arrived at by the court.

11.Sentences for wounding with intent to cause grievous bodily harm vary in range and depend very much on the particular facts of the case.  The range of imprisonment for this offence that is often quoted is 3 to 12 years.  The fact that the defendant had pursued the victim, attacked her with a knife and caused lacerations to her neck and hand, puts this case in the serious category.  Whilst any knife wound inflicted on any part of a person’s body is serious, when it is focused on a particularly vulnerable and dangerous part of the human anatomy such as a person’s neck then that is a matter of consequence when sentencing the offender. 

12.The defendant seems to have been besotted by the victim and was angry at her because of her rejection of him.  It is submitted on his behalf that she led him on and took advantage of him by borrowing money from him.  He in turn felt used.  This does not, however, excuse his extreme and dangerous conduct.  It appears he wanted to hurt her in any way he could.  He tried to harass and embarrass her.  He then tried to physically harm her.  He attacked her with a knife by administering blows to her neck.  The slash across the right side of her neck could very well have resulted in her death.

13.I have received letters from the defendant and his family and his previous employer and work colleagues.  They described the defendant as an introverted and good natured person who acted impulsively and out of character.  The defendant said he realised that he had made a big mistake and regretted the harm he caused the victim.  Indeed, it was a serious crime but with it comes serious consequences. 

14.Mr Raymond Yu, for the defendant, urged upon me to take into account the stress and emotional condition the defendant was under at time of the incident.  He submitted he was deeply and emotionally upset and acted out of a state of jealousy and rejection.  The inner torment that may come from unrequited affection does not excuse or mitigate this kind of conduct.  There is no suggestion that he was other than aware of what he was doing, and the fact is that he set out that day to confront the victim armed with a knife.

15.It is time to recognise and affirm the importance and necessity of a victim impact statement in the sentencing process.  All too often the victim goes unheard when it comes to determine the seriousness and impact of the crime that has been committed. 

16.Where a victim of crime has been physically injured or suffered emotional problems, loss or damage because of a crime, including any grief, distress or trauma that a crime caused, he or she has the right to be heard during the sentencing process of the offender upon his conviction of the crime. See In Sargeant v Police (1997) 15 CRNZ 454.

17.A victim impact statement plays a vital role in assisting the court in imposing a just and appropriate sentence on the offender.  Its function is to help the sentencer understand the impact of a crime on the victim which is an important consideration when sentencing someone.  In order to ensure a just and appropriate sentence, a sentencer should have regard to all the relevant circumstances relating to the offence, including the victim, and the offender. 

18.The victim in this case has submitted a statement and I have also received a psychological assessment of her.  The victim has suffered greatly both physically and emotionally because of this attack on her.  She is unable to raise her head to look up and she feels pain in her neck.  It will take time for her to recover and she will not regain the physical condition she had before the incident.  Her fingers were cut and she is receiving physiotherapy and occupational therapy treatment to improve her dexterity and mobility.  One finger is particularly bad because a tendon was severed.  She has undergone two operations but still cannot lift heavy items.  She had received up until October 2014, 50 treatment sessions at the Physiotherapy Department at the Princess Margret Hospital.  She has been traumatised by the incident and is unable to sleep well at night.  She experiences episodes of distress, feeling scared and has outbursts of crying.  She is receiving psychological counselling and has been diagnosed as suffering from symptoms of Post Traumatic Stress Disorder as a result of the incident.  She is receiving treatment and because of her emotional state has been now referred to receive psychiatric treatment. 

19.With the foregoing facts and factors in mind, I consider an appropriate starting point to be 7½ years’ imprisonment, which I reduce by one third for the defendant’s plea of guilty, thus making a sentence of 5 years’ imprisonment.

Mr Harnish Melwaney, SPP of the Department of Justice, for HKSAR

Mr Raymond CC Yu, instructed by Augustine CY Tong, assigned by Director of Legal Aid, for the defendant