HKSAR v. Nguyen Van Tu

DCCC 734/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 734 OF 2014

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Reasons for Sentence

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Charge and facts

1.The defendant pleads guilty to wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance. 

2.The defendant, aged 48 and the victim, aged 44, were each a resident of one of the 30 rooms partitioned in a flat in Tuen Mun.  There was only 1 shower in the flat. 

3.At about 2 p.m. on 8 June 2014, the victim had waited impatiently outside the bathroom for 10 minutes before the defendant finished up his shower.  The victim blamed him for taking that long.  They continued to argue when the defendant was heading back to his own room, Room 7.  The argument lasted for 2 minutes.  He soon came out of Room 7 with a sharp-blade knife of about 30 cm long and slashed the victim.  As a result, the victim suffered the following injuries:

(1) A laceration wound over abdominal wall of around 20 cm long, deep with the underlying sub-cutaneous fat exposed;

(2) A laceration wound over left elbow of around 8 cm long, deep with underlying muscle exposed;

(3) A laceration wound of around 2 cm long, over left chest wall.

4.After the attack, he fled the scene and put the knife in a flowerbed on the street. 

5.At about 2:28 p.m., he saw a police officer in uniform patrolling on the street in Tuen Mun.  He went up and surrendered himself by claiming that he had chopped someone earlier the day.  The police officer was a stranger to the incident.  Other police officers soon came by to assist.  

6.At about 2:40 p.m., he was arrested by the police.  Under caution, he admitted chopping the victim over the use of a toilet and said that the knife was in a flower planter.  At about 8:05 p.m., he led the police to the flowerbed.  There the police recovered the knife. 

7.In a subsequent video-recorded interview under caution, he elaborated on the following:

(1) The victim often bullied his girlfriend and him;

(2) The victim shouted at him and punched his chest after the shower that day;

(3) When he went to his room, the victim followed him and continued to assault him;

(4) He picked up the knife nearby at random and swung it continuously for self-defence;

(5) He left the scene and put the knife in the flowerbed which the police later recovered;

(6) He surrendered himself to the police on the street;

(7) He had lived there for 6 years and the current rent was $1,800 per month;

(8) He slashed the victim’s abdomen once and elbow once.

8.The victim positively identified the defendant as the attacker in an identification parade held within a month of the incident. 

9.DNA analysis revealed that the victim’s blood stains were found on the defendant’s body and trousers as well as on the blade of the knife on the day of the incident. 

10.The victim was discharged from the hospital after 5 days.  He was given physiotherapy and occupational therapy for rehabilitation.  He was granted 11 days’ sick leave.  He has totally recovered now. 

Personal background and mitigation

11.The defendant was born in Vietnam.  He had completed secondary education in Vietnam.  He was a construction worker until early 2013.  Afterwards, he was met with an industrial accident and had to rely on CSSA.  He has a son, aged 16 and a daughter, aged 14, both under the care of his ex-girlfriend. 

12.He has many criminal records.  Those relating to violence are as follows:

(1) 1 x Robbery, jailed 2 years (1991);

(2) 2 x Assault occasioning actual bodily harm, jailed 6 weeks each concurrent (2006).

13.His records for violent crimes are not to be regarded as an aggravating factor in his present sentence as they were quite some time ago. 

14.His counsel informs me that the victim had moved in about a year before the incident.  They soon engaged in arguments over the utilities in the flat.  The argument they had on that particular day morning was nothing unusual except that the defendant somehow lost his self-control.  Whilst he maintains that in the course of the argument, the victim had punched him 2 times, he accepts that the punches were not as forceful as would otherwise get him to back away.  Instead, he got more furious and wounded the victim.  It did not take long for him to understand his grave wrongdoing and surrender himself to a random police officer on the street who was a stranger to the incident.

Sentencing considerations

15.There are no sentencing guidelines.  Mr. Parry for the prosecution draws my attention to the case of Secretary for Justice v Hau Ping Chuen CAAR 12/2007.  The defendant and the victim were both indigenous clansmen of the same village.  He stabbed the victim with a 5 ½ inch-blade knife because the victim as the village representative on the previous day had put through a proposal to oust him and his family from attending future banquets funded by the village.  There were 2 cut wounds each of 5 cm long over the abdomen and groin respectively.  There were no long-term ill effects after healing.  The defendant confessed his guilt to the police when first confronted by them in the investigation.  The Court of Appeal did not approve of any discount given to the defendant for his cooperation with the police as such cooperation amounted to no more than a confession at the crime scene.  The sentence on appeal was therefore increased from 14 months on a plea of guilty to 3 years and 4 months by adjusting the starting point to 5 years.  As it was a review by the prosecution to increase the sentence, a 6 months reduction was given, to result in 2 years and 10 months. 

16.Mr. Omar in mitigation refers me to Secretary for Justice v Hung Kar Chun CAAR 9/2010.  The defendant was convicted after trial.  The victim often sought to persuade his sister to break up her relationship with the defendant.  The defendant stabbed and slashed the victim by a knife of 20 cm long.  The Court of Appeal identified the aggravating factors as first the use of the knife, secondly that it was a premeditated attack, and thirdly  that there was severe and permanent injury to the victim, whose spleen had to be removed.  The Court of Appeal adopted the observation of the Court of Appeal in a previous case (HKSAR v Yuen Wai Kui [2005] HKEC 630) which stated that the sentences for wounding with intent should be within the range of 3 to 12 years.  In the instant case, the original sentence of 9 months was set aside and, on the basis that it was an application by the prosecution to review the sentence, increased it to 2 ½ years. 

17.The next case is HKSAR v Wong Luk Sau [2013] 2 HKLRD 201.  The defendant, aged 72, and the victim, aged 78, lived in the same housing estate and would watch people play chess in the park.  They had a quarrel over a chess game.  The defendant asked the victim for compensation arising from the quarrel.  An argument ensued and the defendant stabbed and slashed the victim with a knife he had brought along.  The defendant was convicted after trial.  The Court of Appeal stated that the actual sentence had to depend on the facts of the case and the sentencing range could not be restricted to between 3 and 12 years.  Taking into account the defendant’s old age, medical condition, and light record (once for illegal gambling), the sentence of 3 years was reduced to 2 ½ years. 

Sentencing this defendant

18.There was a lapse of only 2 minutes from the argument to the attack.  This supports the defendant’s case of no premeditation when he picked up at random a knife from his own room.  Clearly he had clearly lost his self-control when chopping the victim.  Two of the wounds were deep wounds.  This is the chief aggravating factor. 

19.It is a mitigating factor that the victim had fully recovered from the injuries.  I have also considered the implications of his surrender to a random police officer on the street somewhat head of the progress of the police investigation.  I regard that it had the potential to demonstrate a willingness to shoulder the legal consequences for his crime. Nonetheless, he had maintained a plea of not guilty, as was his right, until the morning of the trial day.  That countered his willingness to shoulder the legal consequences for his crime.  Thus I do not find it apposite to give him any discount for his admission made to the random police officer on the street. 

20.I take a basic starting point of 2 years for the act of wounding, to be increased by 1 year for the 3 wounds, 2 of which were deep and sizeable.  The actual starting point is 3 years.  I give a one-third discount for his plea of guilty.  I also give a discount of 3 months for the victim’s full recovery. 

21.There are no other mitigating factors.  His sentence is 1 year and 9 months.