HKSAR v. Liu Shing Fung

HCCC 139/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 139 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: The defendant, Liu Shing-fung, a 42-year-old man, has pleaded guilty to two counts, namely (1) robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210; and (2) wounding with intent contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212.

The particulars of the two offences describe that they were committed at the same incident on 4 June 2014 at Flat A, 14th Floor, Sung Lai Building, 36 Sung Kit Street, To Kwa Wan, Kowloon in Hong Kong.

The particulars of Count 1 are that at that time and place the defendant robbed Ye Xiaolan of two handbags, two mobile phones, one wallet, one Hong Kong ID card, one Home Visit Permit, one Octopus card, one library card, two credit cards, four ATM cards, two coin bags, cash $540 Hong Kong currency, some photos, one cologne, one cosmetic bag, two rings, two sapphires, one bracelet, two cameras, one computer, one computer bag and one jacket.

The particulars of Count 2 are that at that time and place the defendant unlawfully and maliciously wounded the same person Ye Xiaolan with intent to do her grievous bodily harm.

The defendant has admitted the Summary of Facts prepared by the prosecution, and I will read it out.

At about 1600 hours on 4 June 2014, female: Ye Xiaolan, that is PW1, aged 42, returned after work to her friend’s home at Flat A, 14th Floor, Sung Lai House, 36 Sung Kit Street, Hung Hom, Kowloon (“the flat”), where she had been staying since early 2014.

At about 1625 hours the same day, PW1 heard noises outside the front door of the flat and opened the door where she saw a male wearing a cap and a face mask, later found to be the defendant. The defendant forcibly pushed the door open to enter the flat and PW1 resisted by pushing the door back to prevent him from entering, but unsuccessfully.

Upon entering the flat, the defendant locked the front door and took out from his bag a knife about 15 inches in length. PW1 shouted for help. The defendant then chopped PW1’s head above her right ear with knife causing PW1 to fall to the floor. PW1 immediately crawled to her friend’s room but the defendant followed her and repeatedly chopped her head with the knife. Whilst PW1 was crawling, the defendantgrabbed PW1’s top causing PW1 to turn around and face the defendant who kept chopping her. PW1 fended him off with her hands and bit the defendant’s hand. The defendant then grabbed PW1’s hair with his hand and dragged her into the bedroom where he then covered her with a quilt and punched her face repeatedly. PW1 stopped struggling. After a while, the defendant halted his assault. PW1 then heard the defendant ransack the flat and closed the bedroom door.

After the defendant left the flat, PW1 opened the bedroom door and walked to the front door of the flat where she then collapsed on the floor. Eventually, PW1 managed to open the front door of the flat and sought help from her neighbours but fainted moments later. A neighbour called the security guard of the building and the case was reported to the police.

At about 1638 hours the same day, Sergeant 33054, whilst on his way to render assistance, saw the defendant whom he recognised on previous occasions carrying a bulging black shoulder bag. The defendant was walking hastily along Hok Yuen Street towards Ma Tau Wai Road near the scene of the offence. On arriving at the offence location, Sergeant 33054 viewed the CCTV footages of Sung Lai House which captured the defendant carrying a black bag and entering Sung Lai House at about 1616 hours on 4 June 2014. The defendant then went inside a lift and went up to the 12th floor.

At about 1634 hours, the defendant was now seen carrying a bulging black bag on his shoulder and holding a red bag in his hand walking down the stairs from the second floor to the 1st floor. On reaching the staircase landing to the ground floor, a knife-like object dropped from his black bag on the stairs where he then stopped to pick it up before walking down the stairs to leave at the main entrance where he then turned right towards Hok Yuen Street.

A sweep was conducted at the staircase of Sung Lai House and found, inter alia, were a jacket, a handbag, a computer case bag, and a Gucci box. Found inter alia inside the flat on the floor of a bedroom door was a tooth, and on the floor of a bedroom was a blanket with bloodstains.

PW1’s injuries

PW1 was sent by ambulance to Accident and Emergency of Queen Elizabeth Hospital where she was found to have sustained multiple chop wounds over her skull and both hands. On presentation, she had low blood pressure and multiple deep lacerations over her skull. Emergency operation was performed on 4 June 2014.

CT brain was done and showed scalp hematoma over left temporal region and fracture of the right parietal skull bone. There was also mild hyperdensity at thigh front region which could be contusion. The scalp wounds were explored and sutured under local anaesthesia. There were 12 scalp and forehand deep lacerations with lengths ranging from 3 cm to 10 cm. A repeated CT brain scan was done on 8 June 2014 and showed left frontal hematoma without much increase in size. There was no midline shift. PW1’s scalp stitches were removed on 11 June 2014. Her frontal hematoma and skull fracture were managed conservatively.

Operation showed multiple fingers were injured with multiple lacerations and tendon cut as follows:

1. Left little finger:  Open dislocation of metacarpal phalangeal joint with complete cut of both neurovascular bundles and complete cut of flexor tendon.

2. Left ring finger:  Laceration over dorsal proximal inter phalangeal joint with partial cut of the central slip tendon.

3. Right thumb:  Laceration over volar proximal phalanx region with complete cut to neurovascular bundles and complete cut of flexor tendon of thumb.

4. Right index finger:  Laceration over dorsal metacarpal phalangeal joint region with complete cut of extensor tendon of index finger.

5. Right ring finger:  Laceration over dorsal metacarpal phalangeal region with laceration of ulnar side dorsal expansion. 

Occupational therapy and physiotherapy commenced after operation. PW1 was transferred to Kowloon Hospital for further management on 11 June, and transferred back to Queen Elizabeth Hospital for more intense hand rehabilitation on 2 July 2014 and discharged on 16 July 2014 with specialist outpatient treatment.

Three of PW1’s teeth, namely one upper canine tooth and two lower incisor teeth, were also knocked out from the assault.

Arrest of the defendant

At about 0948 hours on 5 June 2014, police located the defendant outside Tak Yiu House, Tak Long Estate where he was arrested for robbery. Cautioned, the defendant said:

“Ah Sir, I did not rob. I went up there to seek revenge, chopped and wounded the woman just because I couldn’t swallow it.”

At the time of the arrest of the defendant, found inter alia on his person was a Samsung mobile phone which later was found to belong to PW1.

Video recorded interviews were taken from the defendant. Under caution the defendant said, inter alia:

1. On that day he went up to the flat to look for his friend Mr Chan Chun-yiu (“Chan”) on the 14th floor. He had known him for about 20-odd years and he knew his family members. He went up to the flat occasionally. They were like friends but also foes. He went up there to find him out of anger over previous construction matters which they dealt with and went up to the flat to seek revenge on him. He prepared a carrier bag with a change of clothes and shoes, two hats and took a knife with him to slash his friend Chan with it.

2. He set out from home at about 3 to 4 o’clock and took a bus and got off at Ma Tau Wai Road and walked to the flat. He donned a white cap and took the lift to the 12th floor and walked up the stairs to the 14th floor to Chan’s flat to prevent being recognised.

3. He then opened the metal gate, which is not locked, at the same time PW1 opened the wooden door. As PW1 screamed and the defendant could not stop her, he attacked her with the knife to silence her. He could not remember whether he slashed her on the head or what part of the body he slashed her. He dragged her into a room and she bit his finger. He got mad and attacked her again with a knife. She yelled again and he attacked her again and then she fainted.

4. Since Chan was not at home, to ease his vengeance he searched the flat and took away property including mobile phones, a Samsung computer tablet, a notebook computer, some jewellery, a red backpack, $300 and three packets of cigarettes.

5. He changed into his friend’s trousers, as his own trousers had blood on it, and donned a black hat to prevent being recognised.

6. He then took the stairs and left the building for Tsz Wan Shan.  Once he reached Tsz Wan Shan, he washed the knife with a bottle of water, changed his top and shoes. 

7. He threw away all the property he had stolen in the flat into a rubbish bin, but kept the $300, the three packets of cigarettes and a mobile phone, and he then returned home and later met his brother at an amusement centre where he had used the $300 he had stolen to play video games.

8. He admitted that the Samsung mobile phone found on him was taken from the flat.

The defendant led the police to the bushes inside Tze Wan Shan Estate Service Reservoir Playground where a knife wrapped in plastic tapes was recovered. Cautioned, the defendant confirmed that this was the knife he used to attack PW1 with.

The defendant also led police to outside CCC Heep Woh College at the junction between Po Kong Village Road and Tze Wan Shan Road and outside Po Leung Kuk No 1 W H Cheung College on Po Kong Village Road, where he pointed out the respective rubbish bins where he had thrown away the stolen property. However, no stolen properties were recovered from the said rubbish bins.

Properties stolen

The property stolen from the flat is as particularised in Charge 1. The total value of the properties stolen was estimated at $98,378 and cash $540.

The mobile phone found on the defendant and the property found on the staircase of the building was shown to PW1 and the family whom PW1 was living with and they confirmed the properties belonged to them and were stolen from their flat.

Male, Chan Chun-yiu confirmed that he and the defendant had known each other for about 20-odd years. Recently the defendant kept asking him, that is Chan, to lend him money and the defendant will even go to his home to borrow money from him. Several days before the offence, the defendant called him again to borrow money and he told the defendant off.

The defendant admits and accepts that he robbed PW1 at the flat as particularised in Charge 1 and wounded PW1 with intent to do her grievous bodily harm as particularised in Charge 2.

Relevant sentencing authorities can be found referred to in Cross and Cheung, Sentencing in Hong Kong (7th edition), pages 682 to 3 on robbery, and pages 666 to 667 on wounding with intent.

Both offences are punishable with life imprisonment.

In Mo Kwong Sang v R [1981] HKLR 610, it was held that a robbery committed with a display of a knife without other aggravating features attracts a starting point of 5 years’ imprisonment. Obviously, entering the victim’s residence and using a knife to attack the victim in order to carry out the robbery are aggravating features.

In the present case, the wounding separately resulted in Count 2 being brought against the defendant.

Like the appropriate sentence for robbery, that for wounding with intent is very much case-specific.

Miss Lee, counsel for the defendant, has referred me to three cases on wounding with intent, namely HKSAR v Tse Hok Lam [2005] HKLRD 344; Secretary for Justice v Hau Ping Chuen [2008] 3 HKC 398; Secretary for Justice v Yu Yat San [2011] 1 HKC 155.

In my view, only Tse Hok Lam’s case, but not the two subsequent cases, shows injuries to the victim closer in seriousness to those suffered by the victim in the present case referred to in the Summary of Facts.

In the present case, the victim has also given a statement on 12 May 2015 about the effects of the case on her. She says - that is from her statement of 12 May 2015:

“After the occurrence of this wounding case, I have been affected in various ways and suffered from the following sequelae:

1. As I was chopped in the head, my olfactory nerves inside my brain was severed. I lost my sense of smell and cannot smell any scents at all.

2. Now I often have headaches and rely on painkillers for pain relief.

3. The nerves of my left little finger were severed causing it senseless, and my little finger cannot straighten nor can it bend like before.

4. My right little finger, index finger and thumb cannot bend like before, and my thumb is also senseless due to the severed nerves.

5. Because of the incident, I lost three teeth (an upper canine and two lower incises), and six teeth were bumped loose. Therefore, I went to Shenzhen for dental treatment where I received insertion of three artificial teeth and six dental crowns to hold teeth firmly in place. Even though I have received teeth insertion, my chewing ability is still a lot worse than before, and I cannot eat hard food.

6. After the incident, I often suffer from insomnia and have nightmares about the scenes of being chopped. I am afraid of being alone. Going out at night and seeing people who wear masks. I still do not have the courage to find a job, and I will need to face lots of people, and I’m afraid that I may encounter the person(s) who chopped me.

I am currently going to the Department of Neurosurgery at Queen Elizabeth Hospital for follow-up of my loss of sense of smell due to damage of olfactory nerves. Also, as I am suffering from insomnia, nightmares and fear of being alone, I have been referred to the East Kowloon Psychiatric Centre to see a psychologist and receive career counselling to help me find a job.

As for my hand movement problems, the hospital had arranged physiotherapy for me which had ended in January of this year, and now I no longer receive any medical follow-ups for this, but I would make a medical appointment if there is any problem.”

At the last hearing I ordered a medical report on the victim. Since her physical problems have been described, I will just read out the part of the psychiatric or psychological report. This report is signed by Dr Choi, a Resident of the East Kowloon Psychiatric Centre. The report is dated 28 May 2015 which, relevantly, reads:

“Ms Ye was first seen in East Kowloon Psychiatric Centre in November 2014 presenting with prominent anxiety symptoms with palpitation, subjective shortness of breath and tremor, hypervigilance, flashbacks of the incident, avoidance of going to the related places, poor sleep with nightmares, after she was assaulted on 4 June 2014.

She was diagnosed to suffer from post‑traumatic stress disorder. She was treated with antidepressants, referred to the clinical psychologist for psychological intervention and to the occupational therapist for rehabilitation.

She was last seen in the clinic on 26 February 2015 when she reported herself to be improving with treatment but still having suboptimal sleep. Mental state examination revealed an euthymic lady with coherent and relevant speech without any psychotic symptom or suicidal idea. Her mediation was titrated.

She was prescribed with Mirtazapine orodispersible 15 mg at bedtime, and Zolpidem 5 mg at bedtime as necessary. Her next follow-up will be 13 weeks later.

In summary, Ms Ye suffered from post-traumatic stress disorder and is receiving psychiatric treatment.”

Judging from the facts and all the surrounding circumstances of the present case, I consider that the seriousness of the attack on the victim and the lasting effect of the injuries suffered by her are different from and more serious than the three cases cited by Miss Lee.

I consider, however, that both the defendant and the victim are lucky in the present case because as Miss Lee states in paragraph 13 of her written submissions, “the victim had suffered multiple chop wounds over her scalp and both hands. Three teeth were also knocked off as a result of the attack, but, fortunately, the victim seemed to have made quite a remarkable recovery, although she is still receiving psychiatric treatment and occupational therapy for rehabilitation. Most importantly, there is no disfigurement to her face and she does not appear to suffer any permanent disability.”

In all the circumstances, I consider that the appropriate starting point for Count 1, that is the robbery charge, is 6 years’ imprisonment, whereas for Count 2 it is 9 years’ imprisonment.

No credit will be given to the defendant for not having been in trouble before, for he has two previous convictions, but none similar. I do not, however, take his previous convictions against him for enhancing sentence.

The only mitigating factor is the defendant’s plea of guilty for which he will be given the full one-third discount.

Therefore, for Count 1, the sentence I impose on him is 4 years’ imprisonment, and for Count 2 the sentence is 6 years. Taking into account the totality principle, I order that 3 years of the sentence for Count 1 to run concurrently with the sentence for Count 2, ie, only one year should run consecutively to the sentence for Count 2.

Therefore, the total sentence I impose on the defendant is imprisonment for 7 years.