HKSAR v. Leung Tat Yiu

DCCC 100/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 100 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty to one offence of wounding with intent, contrary to section 17(a) of Cap 212. He has agreed a Summary of Facts and I have convicted him of the offence.

2.The Summary of Facts shows that the offence occurred on 1 December 2014, when the victim, who is a Mr Cheung, was playing video games in Nam Cheong Street sitting-out area in Sham Shui Po.  The Summary of Facts shows that the defendant was in dispute with a man called Mun Shing.  Then an argument ensued between the defendant and the 1st prosecution witness.  The defendant left the scene, but returned some 45 minutes later.  At that time he had a knife with a blade of around 25 centimetres.

3.The victim ran away, and the defendant gave chase.  The victim threw a rubbish bin towards the defendant to stop him.  The pursuit continued, and the defendant managed to chop the victim’s buttocks once on the right side.  Eventually the victim had to turn round to face the defendant, and the defendant chopped the victim and swore at him.  The victim had to fend off the blows and use both his hands.  The defendant was seen at that stage to chop the victim two or three times.

4.The victim tried to escape, but slipped over. It was whilst on the ground that the defendant chopped the victim numerous times.  The victim tried to fend off the blows with his hands.  Some unknown passers-by helped the victim by hitting the defendant with an umbrella, and the defendant eventually fled.

5.There was evidence that the defendant had purchased the knife from a shop nearby.  At about 3.45 a knife for cutting beef had been sold to a man.  CCTV footage of the shop captured a person largely resembling the defendant, wearing the same clothes as the defendant, buying a knife at around 3.44 to 3.46 from that shop.  He had tucked the knife into his trousers and left the shop.

6.The victim, PW1, was admitted to Princess Margaret Hospital on the same day and had an emergency operation.  He was diagnosed with a number of injuries.  The injuries were extensive and would appear to be in a number of areas:  firstly, the right lateral orbital wall.  There is a laceration with underlying fracture.  That is a head injury.

7.On the left forearm there are a number of cuts:  a cut wound from the dorsal to the volar ulna aspect of the left distal forearm; a complete cut of the left ulna artery and the ulna nerve at the distal forearm; a complete cut of all the forearm muscle at the musculo-tendinous junction; an open fracture of the distal shaft of the left ulna - that is, the forearm.

8.On the left arm there is a transverse laceration almost three-quarters of the arm’s circumference along the lateral aspect of the mid to distal ulna; a complete cut of the biceps brachii and 70 per cent cut of the triceps brachii; a complete cut of the radial nerve main trunk and the branch to the triceps; a complete cut of the profunda brachii artery at the same level.

9.On the right arm there is an 11 centimetre wound on the dorsoradial right forearm; a 6 centimetre wound on the ulna side of the forearm; and a partially-cut flexor carpi ulnaris muscle.

10.Turning to the legs, on the left lower limb there is a 10 centimetre chop wound at the anterior knee through which the bone could be seen; a 13 centimetre cut at the lateral side of the knee along the lateral knee joint; a fracture of the lateral fibula head.  On the right lower limb, a 10 centimetre cut at the thigh and a 6 centimetre wound at the knee; a cut of the muscle, and also the lateral knee capsule was cut.  Also on the right lower limb, a 7 centimetre wound at the shin and deep cuts to the muscle.  At the hip on the right, a 10 centimetre transverse wound; a superficial partial cut of the gluteus maximus.

11.Treatment involved would exploration, suturing, muscle repair, nerve repair, open reduction, and internal fixation for the left ulna.  The victim was discharged on 9 December 2014.  His post-operative recovery was described as uneventful.  There is a dynamic radial nerve palsy splint and right long-arm brace applied.  The victim was referred to have outpatient physiotherapy and occupational therapy.  He was eligible for sick leave between 1 December 2014 and 2 March 2015.

12.I asked for an updated report to see if there was any underlying or permanent injury to the victim.  There is a report dated 8 April 2015.  It is not particularly helpful to answer the questions raised, but that would seem to be unavoidable given the injuries and the treatment the victim has been given.  We know that he was receiving outpatient physiotherapy and occupational therapy.  I am told he was last at the Orthopaedics Outpatient Clinic on 2 March 2015.  He was advised to quit smoking and continue rehabilitation.  There will be a nerve conduction test on 28 August 2015.  The sick leave was continued to 4 May 2015.  No doubt it will be reassessed at that point.

13.So according to this report, the victim’s condition is still sufficient to warrant him being on sick leave.  The conclusion is based on the patient’s orthopaedic injuries.  The victim is expected to have some degree of permanent disability.  Any permanent disability, if any, should be assessed by the Medical Assessment Board; clearly, who are not in a position to do that at present.

14.I think for the purposes of this case, one would assume that the doctor’s assumption is rational, but there is an expectation of some degree of permanent disability on the victim, which is hardly surprising given the extent of the injuries suffered by the victim in what appears to have been a frenzied attack on him with a knife.

15.As far as the other progress of the case is concerned, the defendant left Hong Kong for Macau on 2 December 2014 and was arrested when he returned.  He was subject to video‑recorded interviews. His explanation at the time was that he had borrowed $1,000 from Mun Shing, a loan shark.  He had been asked to repay the loan.  There was a dispute over the defendant’s attitude, and he had been assaulted.  The defendant had escaped. He had found a knife on the street, he said.  He picked it up and returned to the scene to chase the men and chop them.  H had attacked one of the men and had disposed of the knife at the scene.  He went to Macau and was apprehended on his return.

16.He chopped the man because he had been assaulted earlier.  He denied visiting the shop to purchase the knife and insisted he had picked up the knife from a rubbish bin.  The defendant did say in mitigation, certainly, that he had not bought the knife.  The defendant accepts, of course, that he could not be seen to be acting in self-defence and had chopped the man because of what he said was the assault at an earlier time.  The evidence from the CCTV, as agreed in the Summary of Facts, is compelling that the defendant had in fact purchased the knife from the shop, which shows a settled intention by him to cause serious injury, and clearly the attack on the victim is illustrative of that intention.

17.As far as the defendant’s background is concerned, he is a 41-year-old male.  There are a total of 12 previous recorded court appearances for what I think can be described as petty crimes of theft and the like.  In 2011 he was convicted of resisting a member of the Customs & Excise Service, and received a 2‑week sentence for that.  In the same year, he was convicted of common assault, and received an 8-week sentence.  He has also been imprisoned for other offences such as copyright offences, theft and possession and publishing obscene articles.

18.Following conviction I obtained reports on the defendant in respect of his psychiatric and psychological condition.  These reports also set out general background of the defendant.  The psychiatric report concludes that the defendant has a mental behavioural disorder, due to his use of opiates, described as dependent syndrome.  No psychiatric management is warranted, and it would be said to be beneficial to him if he was detoxified of his dependency on opioids.

19.The psychological report contains some background on the defendant.  He is said to have grown up in a single-parent family, the youngest child, with two older brothers.  He had left the family when he was 19 years old.  He had a poor academic performance, and displayed significant behavioural problems since early adolescence.  Since school he had no formal employment.  He had worked briefly as a renovation worker for his elder brother but failed to sustain employment due to drug abuse, and otherwise engaged in illegal activities such as selling pirated discs or theft to make a living.  He had been a smoker and drinker since early adolescence.  When he was 19 years old he started to consume heroin.  It said that prior to the indexed offence he regularly abused heroin in the mornings and afternoons and felt energised after consumption.  Otherwise, the defendant reported frequent conflicts with others on trivial matters.  Verbal arguments quickly escalated to physical fights.  He considered violence as a normal reaction when being threatened.

20.Currently the defendant has unstable accommodation and lived in subdivided housing units.  He has a daily routine centred on drug-related activities.  He was dependent on social assistance, and had more than $10,000 in debt.

21.The impression of the defendant obtained by the psychologist is that the defendant is an egocentric, impulsive and aggressive individual with poor anger management, a chronic history of substance abuse and criminal lifestyle.  It is said that in view of his offending history, criminal association and attitude, chronic drug abuse and anti-social personal features, his risk of violent recidivism is high.  The risk assessment is based on current information, and it is said the risk of recidivism is dynamic, with the possibility of varying response to changes in personal and environmental conditions.

22.The conclusion is that the defendant is a reoffender of violent offences.  He described as impulsive, aggressive and irresponsible, and has a habitual use of violence to handle interpersonal conflicts, express anger, and gain control of situations.  He holds criminal attitudes to justify his aggressive behaviour and demonstrates features of anti-social personality, has poor anger management, anti-social personality, chronic drug abuse, weak self-control and maladaptive problem solving.  Psychological treatment in respect of the anger management and drug abuse is recommended.  It is said that the defendant presents limited motivation to change.

23.It is clear from the psychological report that the defendant’s risk of reoffending is high, and one must consider the protection of the public interest when one is dealing with a person of that nature.

24.As far as the mitigation is concerned, it is said the defendant is currently or had been a street sleeper at the time and had borrowed money from Mun Shing, a loan shark.  He had agreed to repay money, and an altercation had arisen.  But it is clear from the psychological report the defendant has a very poor or limited self-control.

25.As far as sentence is concerned, I was referred to the case of Secretary for Justice v Yu Yat Sang, which was an application for review number 2 of 2010 dealing with a case of sentencing in respect of the offence of section 17(a) of Cap 212.  The court observed in that case that the usual range for a section 17 offence was said to be one between 3 to 12 years.  This is a wide range reflecting the fact that the circumstances in which such offences were committed were infinitely varied. That range was referred to in the case of HKSAR v Hau Ping Chuen [2008] 4 HKLRD 673, and that clearly is the appropriate range of sentencing for this offence, between 3 to 12 years’ imprisonment.

26.The case of Yu Yat Sang, which is the case on review, involved an attack using a knife described as a chopper.  In that case, the victim’s ear was cut apart, there was a long cut of wound on the neck and on the back as a result of the attack; also a 6-inch long cut on the right forearm.

27.It must be remembered in all these charges, especially section 17(a) cases, that the offences are executed with an intent to cause really serious harm, and this is apparent in this case in the nature of the weapon used and the extensive range of injuries that the victim received.

28.In Yu Yat Sang the court took a starting point for sentence of 5½ years’ imprisonment.  They said in that case the absence of medical reports dealing with permanence or otherwise of injuries, the absence of photographs, and the view taken by the judge of the defendant’s personality, a harsh starting point would be warranted.

29.What I know about the victim’s injuries is that they were extensive.  There were a lot of cut wounds - cuts to the nerves, cuts to muscles; fracture; there was an orbital wall laceration with an underlying fracture as well.  The victim, as I understand it, is currently still on sick leave, but appears to have made an uneventful recovery and is still receiving physiotherapy and occupational therapy.  The furthest one could go is to say that maybe there is expected to be some degree of permanent disability.  So in terms of the injuries, it is a serious attack involving some permanent injury.

30.As far as the defendant is concerned, there is clearly a risk of reoffending as a result of the defendant’s personality traits.  This may be treatable, however, whilst he receives a sentence of imprisonment.

31.Clearly a sentence of imprisonment is appropriate.  It must fall within the range I have described as between 3 to 12 years’ imprisonment.  I consider that in this case for this offence the appropriate starting point should be one of 6 years’ imprisonment.  That will be reduced by one-third, having regard to the defendant’s plea of guilty.

32.The sentence imposed by the court will be one of 4 years’ imprisonment.