HKSAR v. CHAN HING BIU

DCCC 484/2018

[2018] HKDC 1547

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 484 OF 2018

____________

____________

REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of causing grievous bodily harm to Wan Chi Ho with intent to do him grievous bodily harm, contrary to section 17(a) of the Offences against the Person Ordinance[1].

2.  Full particulars of the offence are set out in the facts admitted by the defendant today.  In summary Mr Wan and the defendant were street sleepers who slept overnight in the McDonald’s at No. 418 Ma Tau Wai Road in Hung Hom.    

3.  At about 2330 hours on 3 March this year Mr Wan; the defendant and another street sleeper Mr To Hing Man were in the McDonald’s.  The defendant was sitting at a different table to Mr Wan and Mr To. 

4.  Mr Wan asked the defendant why he was staring at him.  A dispute then ensued.  Mr Wan asked the defendant to go outside to discuss the matter so as not to disturb other customers.

5.  Mr Wan left first followed by the defendant.  As the defendant left Mr To saw the defendant take out a pocket folding knife from his bag.  Feeling worried Mr To followed as well. 

6.  Once outside the defendant, holding the knife in his hand with the blade exposed, chased after Mr Wan.  When Mr Wan stumbled and fell on the ground the defendant waved the knife and stabbed Mr Wan a few times.  Mr Wan used his left hand to fend off the defendant in the course of which the left hand of Mr Wan was cut.  Mr Wan was also stabbed on his left thigh. 

7.  Mr Wan managed to get up and run away.  The defendant kept chasing Mr Wan and at the same time shouted “I will chop you to death”. Mr Wan reported the matter to the police, who arrived soon afterwards and arrested the defendant. 

8.  Mr Wan sustained wounds to his left hand and left thigh.  The most serious injury was an 8 cm cut wound which extended from the first web to the thenar base of Mr Wan’s left hand.  An emergency operation was conducted because 50% of the adductor pollicis muscle was cut and 100% of the digital nerves of the left thumb were cut.  

9.  Mr Wan was given a thumb spica splint and was referred to physiotherapy and occupational therapy for nerve and tendon repair rehabilitation program.   By April all the wounds had healed well.  Mr Wan still had numbness in his left thumb and index finger stiffness.   

10.  Medical reports of Dr Chan Ho and Dr Leung Sai Man have been submitted to court together with photographs of the injuries.  Ms Lo informs the court that the police contacted Mr Wan yesterday who informed them that he still had stiffness in his hand but did not attend further occupational therapy, apparently due to lack of money.  No assessment appears to have been made as to whether there will be any permanent injury to the left hand. 

Mitigation

11.  In passing sentence, I take into account everything said on behalf of the defendant by Ms Liang, including that the defendant became homeless after he was divorced and his ex-wife and children retained the public housing unit. 

12.  Although the defendant has previous convictions, I take into account that the defendant has no similar convictions for serious offences of violence and has never been sentenced to a term of imprisonment.

13.  Ms Liang submits that when the defendant went out of McDonald’s, Mr Wan punched him causing him to fall on the ground.  Only after the defendant was knocked to the ground did he unfold the knife and chase after Mr Wan resulting in the injuries to Mr Wan’s left hand and left thigh.    

14.  Taking into account that this is what the defendant told the police; the defendant’s injuries as particularised in paragraph 9 of the Summary of Facts are consistent with this version and that it was Mr Wan who invited the defendant to go outside, I proceed on the basis that Mr Wan was the first person to use violence. 

Starting point

15.  There are no guidelines for sentence.  The courts will not tolerate attacking another person with a lethal weapon such as a knife on minor provocation or while having a dispute and that in dealing with this kind of case the courts will impose more severe and deterrent sentences[2].   I have seen the pocket folding knife which is clearly a lethal weapon[3].

16.  In HKSAR v Hau Ping Chuen the Court of Appeal referred to the usual range of sentence for wounding with intent being described as 3-12 years[4].  The Court of Appeal noting that there were a host of wounding with intent decisions which might be used in favour of a lenient view whereas others favour a stricter view said that:

“At the end of the day, a sentencing court obtains a ‘feel’ for the appropriate result by regard to the attitude of courts over a period of time to a great variety of circumstances.”

17.  In HKSAR v Chan Chun Tat the court listed a number of relevant factors to be considered in determining the gravity of the offence and the culpability of the offender, including the extent to which the assault was premeditated; the reasons or motivation underlying the assault upon the victim; the mental or emotional state of the assailant at the time of the assault; whether alcohol or drugs contributed to the actions of the assailant; whether the assault was committed by the assailant alone or as part of a group; the type of weapons employed; the level of force or aggression and the persistence with which the assault was pressed home; the injuries caused to the victim and the effect of the assault upon the victim and those close to him or her[5].

Sentence

18.  Taking into account the circumstances of the attack; that Mr Wan first hit the defendant; the injuries sustained by Mr Wan and that the offence arose out of a dispute in McDonald’s and not any prior grudge, I am satisfied that the proper sentence after trial is 2 years and 6 months’ imprisonment.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 1 year and 8 months’ imprisonment.