HKSAR v. THE CHEUNG FUNG

DCCC 406/2020

[2021] HKDC 354

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 406 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of wounding, contrary to section 19 of the Offences against the Person Ordinance (charge 1)[1]; one charge of wounding with intent, contrary to section 17 of the Offences against the Person Ordinance (charge 2) and one charge of assaulting a police officer in the due execution of his duty, contrary to section 36(b) of the Offences against the Person Ordinance (charge 3).

2.  Full particulars of the offence are set out in the re-amended summary of facts admitted by the defendant today[2]. In summary in April 2019 Mr Yu, aged 69, was the owner of a flat at Room 8 on the 21st floor of Yee Fat Building, Block B, No. 192 Wo Yi Hop Road in Kwai Chung.   The flat comprised of three rooms.  Mr Yu lived in one room and rented out the other two rooms.  On 19 March 2019 the defendant rented one of the rooms.

Charge 1

3.  At about 11:30 p.m. on 9 April 2019 Mr Yu and the defendant had an argument about the water heater in the bathroom.  In the heat of the argument the defendant pushed Mr Yu and grabbed a hand riveter and hit Mr Yu.  Mr Yu tried to fend off the blows.  The defendant hit Mr Yu on his chin with the hand riveter causing Mr Yu’s chin to bleed.  The defendant then pushed Mr Yu out of the flat and did not let him back inside.

4.  Mr Yu went to the management office and reported the case to the police.  The police arrived and arrested the defendant.  Under caution the defendant admitted pushing Mr Yu and hitting him with the riveter.  A photograph of the riveter has been submitted to court[3].

5.  Mr Yu went to hospital in the early hours of 10 April 2019 but after waiting a long time left the hospital without receiving any treatment and returned home.  While in hospital the police observed that Mr Yu had sustained abrasions to his forearms and chin and took three photograph of his injuries.  The three photographs have been submitted to court[4].

6.  Mr Yu sustained bruises to the corner of the right eye and a 6 cm long abrasion on the chin[5]; a 10 cm long abrasion on the right forearm[6], and a 1.5 cm wound on the left forearm[7].

Charge 2

7.  At about 6:30 p.m. on 10 April 2019 Mr Yu saw the defendant, who had been released on police bail, in the living room.  The defendant blamed Mr Yu for reporting the matter to the police and assaulted Mr Yu.   The defendant repeatedly hit Mr Yu with a hard object until Mr Yu fell to the ground and lost consciousness.

8.  Ms Liu, who resided in the other room in the flat, called the police.  The police arrested the defendant and seized a broken wooden folding stool and some wooden pieces.  The defendant’s DNA was found on the leg of the folding stool. Photographs of the folding stool have been submitted to court[8].

9.  Mr Yu was taken to hospital having sustained multiple injuries including brain contusion and bleeding; a fractured rib, spine fracture; jaw fractures and a wound to the forehead which required stitching.  Mr Yu was hospitalised for nineteen days.  Medical reports and photographs of the injuries have been submitted to court[9].

10.  After discharge Mr Yu’s condition deteriorated, including diminished movement on his right side, non-fluent speech and unstable gait.  Mr Yu was re-admitted to hospital on 17 June 2019 and diagnosed with subdural bleeding over the frontal lobes.  Mr Yu was admitted to ICU where brain drainage was performed after which he was transferred to the Neurosurgery ward on 19 June 2019. 

11.  After Mr Yu’s condition stabilized he was discharged home on 29 June 2019. Fortunately, Mr Yu did not suffer from any cognitive disability as a result of the injuries.  Mr Au-Yeung has also confirmed in court today that Mr Yu has fully recovered from all his injuries. 

Charge 3

12.  The defendant was taken to the Kwai Chung police station where he was detained in police custody.  At about 2:36 p.m. on 12 April 2019 the defendant was taken to Room 225 by DPC 18821, DPC 9288 and DSGT 34906 to be interviewed. 

13.  The defendant refused to be interviewed and swore at the police officers.  After the police refused the defendant’s request to smoke the defendant demanded to be released on bail.  When DPC 18821 told the defendant he could not be given bail yet as the investigation was still ongoing, the defendant became emotional and kicked DPC 18821 on the thigh.  The defendant was subdued and handcuffed by DPC 9288.

Mitigation

14.  In passing sentence, I have carefully considered the oral and written submissions of Mr Ching, including that the defendant who is 41 and single, acted out of impulsiveness and because he felt the attitude of the police was not good[10].

15.  I have read the mitigation letters written by the defendant’s mother, who is in court today to support her son, asking for a chance to give her son a light sentence. I have also read the letter from Mr Cheung a gospel minister with the Tsuen Wan church, who asks the court to consider a rehabilitative approach to sentence to enable the defendant to rid himself of his drug addiction and ease the mother’s nightmare having two sons who are both drug addicts. 

16.  Whilst sympathetic with the defendant’s mother, who no doubt has endured a lot of suffering, the defendant has in the past been given many opportunities by the court to cure himself of his addiction.  Furthermore, the offences committed by the defendant are not drug related and are very serious, attacking an elderly man who suffered serious injuries.  

Guidelines

17.  There are no guidelines for offences of wounding or wounding with intent. 

18.  In HKSAR v Hau Ping Chuen[11] 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.”

19.  In HKSAR v Chan Chun Tat[12] 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.

20.  Mr Ching refers the court to a number of sentencing cases in the District Court, including a case where I was the sentencing judge[13].   I have considered these cases.  The facts and circumstances of those cases are very different.  Each case is decided on its own facts. 

21.  Whilst the first attack may be described as impulsive, the second attack was shortly after the defendant was released on police bail and in revenge for Mr Yu having reported the first attack to the police. 

22.  The injuries sustained in the second attack were very serious.  Fortunately, Mr Yu has made a full recovery from his injuries.  The injury to the brain however could easily have been more severe and resulted in permanent disability, in particular considering the age of Mr Yu.

23.  I am satisfied the appropriate starting point for the first attack is 1 year and 3 months’ imprisonment and the second attack is 4 years and 6 months’ imprisonment. 

Persistent offender

24.  The defendant has appeared in court on eighteen occasions since 1997 amassing a total of thirty-four convictions.  In 2017 and 2018 the defendant was sentenced to imprisonment for offences of wounding.  I am satisfied the defendant is a persistent offender in offences of violence.

25.  I enhance the starting point for both offences by 3 months to 1 year and 6 months’ imprisonment and 4 years and 9 months’ imprisonment.  Giving the defendant full credit for his pleas of guilty reduces the sentence to 12 months’ imprisonment and 3 years and 2 months’ imprisonment. 

Assault police

26.  Taking into account this was a single kick and that DPC 18821 did not suffer any injuries only tenderness, I am satisfied the proper starting point after trial is one of 2 months’ imprisonment.  Taking into account this is the defendant’s third conviction for assaulting a police officer, having been convicted in 2018 and 2020[14], I enhance the starting point by 1 month to 3 months’ imprisonment.  Giving the defendant full credit for his plea of guilty reduces the sentence to 2 months’ imprisonment.

Delay

27.  Mr Ching asks the court to consider a reduction in sentence by reason of the delay in bringing the case to court.

28.  All the circumstances must be looked at including whether the offender has acknowledged guilt; where the delay has given the offender the opportunity to rehabilitate himself; the size of the investigation and whether the time taken to bring the case to court was longer than necessary[15].

29.  The offences were committed on 9, 10 and 12 April 2019, nearly two years ago.  Mr Au-Yeung has submitted a chronology of events which shows that the case was transferred to the District Court in June 2020.  The time taken to transfer the case, fourteen months, appears to be due to the time taken in obtaining medical reports.

30.  Whilst over a year is a long time in which to obtain medical reports, the defendant has not taken the opportunity to rehabilitate himself.  The defendant was given court bail in June 2019.  Bail was revoked after the defendant committed further offences on 18 July 2019 for which he was sentenced to a total of 10 months’ imprisonment on 20 October 2020[16].   

31.  I am satisfied no discount should be given by reason of the time taken to bring the case to court. 

Totality

32.  Sentence must reflect that the defendant attacked his landlord on two separate occasions.  For the two wounding charges I am satisfied a total sentence of 3 years and 4 months’ imprisonment properly reflects the defendant’s criminal culpability on these two charges. 

33.  Assaulting a police officer is separate and distinct from the wounding charges and adds to the defendant’s culpability.  A consecutive sentence is appropriate making a total sentence of 3 years and 6 months’ imprisonment, which I am satisfied properly reflects the defendant’s criminality on the three charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[17].

Sentence

34.  The defendant is convicted and sentenced as follows:

Charge 2 – 3 years and 2 months’ imprisonment;

Charge 1 – 12 months’ imprisonment with 2 months consecutive and 10 months concurrent to charge 2; and

Charge 3 – 2 months’ imprisonment consecutive to charges 1 & 2.

The total sentence to be served by the defendant is 3 years and 6 months’ imprisonment.