HKSAR v. CHOW KAM HING

DCCC 655/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 655 OF 2013

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a charge of wounding, contrary to section 19 of the Offences Against the Person Ordinance

2.  The facts in this case are somewhat complicated.  The defendant and the victim, PW1, were co-workers.  They were responsible for delivering goods for their company.  PW1 was the driver of the delivery van, and the defendant was responsible for taking the goods from the delivery van to the customers.

3.  I am told that the relationship between the defendant and the victim was not good, and they frequently quarrelled.  On 21 March 2013 at about 9 o’clock in the morning, the defendant and the victim delivered goods to the Shun King Restaurant on the Ground Floor of 56 Fuk Tsun Street in Mong Kok.  The victim wanted the defendant to deliver the goods quickly to the restaurant as the delivery van was parked in a restricted area.

4.  As the defendant was about to carry two large bags of sugar on his shoulders to the restaurant, the victim wanted to load an extra box of goods onto the defendant’s shoulder.  The defendant was upset and moved away, and the box of goods fell to the ground.  It seems that the defendant was under the impression that the victim was throwing this box of goods at him, and he then threw the two bags of sugar at the victim, and the victim dodged them.

5.  A quarrel started, and this developed into violence.  They started hitting each other, but not fiercely at the beginning. However, the dispute then did turn fierce, and the defendant rushed into a restaurant and came out with a knife.  Notwithstanding the defendant having a knife, the victim taunted the defendant, saying that he would not dare chop anybody, and the victim picked up a trolley for self-defence.  I have been shown a picture of the trolley.  It is a substantial iron trolley.

6.  The defendant approached the victim with the knife and chopped at him, and the victim fended off the attack with the trolley.  The victim retreated and was pursued by the defendant.  He chopped out at the victim and the victim fended him off with the trolley.  At that stage, the defendant turned round and walked away.  The victim dropped the trolley, but then followed the defendant, and they continued to argue and shove each other, and the victim hit the defendant a few times.

7.  The defendant chopped at the victim’s left face with the knife, and the victim used his hand to cover his left face.  The defendant chased after the victim and chopped at him, and the victim defended himself with his hands and retreated.  The victim then turned round and ran away.

8.  The fight stopped for a while, but the victim then picked up the trolley again and tried to hit the defendant with it, but he missed.  He then threw the trolley at the defendant, and again he missed.  The dispute then did stop, and the defendant returned to the restaurant and returned the knife which he had taken from the restaurant.

9.  Much of what had taken place was captured on a video clip which a bystander took on his mobile phone.  The incident was reported to the police, and the police arrived at the scene and the victim identified the defendant as the person who had chopped him with the knife, and the defendant admitted that he had chopped at the victim.

10.  The victim was taken to Kwong Wah Hospital for treatment.  He was found to have one 15-centimetre horizontal laceration over his left cheek which exposed towards the hairline, a 2-centimetre laceration with skin loss over his left earlobe, a 3-centimetre linear cut on his left elbow, with exposure of the muscular part of the triceps.  He was discharged the same day.  He returned to the hospital on 5 April and his wounds were found to have healed.

11.  According to the Brief Facts, the police confirmed with the victim’s doctor that the victim did not suffer any permanent injury except the scars on his face and elbow.

12.  The victim is in court today, and I am told he approached the prosecutor and told him that in respect of the injury he sustained just below his left ear, he is experiencing a tightness in the skin and is concerned that there might be some nerve damage, but there is no medical confirmation of this assertion.

13.  The defendant has appeared in court on three previous occasions.  However, the last occasion was a long time ago in 1995. None of the offences related to violence.

14.  In mitigation I was told that the defendant is 55 years of age.  He was born on the mainland but came to Hong Kong in 1980.  He was educated to Primary 3 level.  He was originally married to his first wife and had two children by that marriage, a daughter now 30 and a son now 20. With his second wife he has a daughter who is aged 13, but they have been separated since 2008.  Since 2009 he has been acquainted with a Madam Tse, who is in court today.  She has a son who is aged 13 by her ex-husband.  They have cohabited since 2009, and the defendant has accepted responsibility for maintaining the 13‑year‑old boy.

15.  He has worked previously as a coolie, as a hawker, and a delivery worker, and he started to work for his last firm in 2008 and was earning $12,000 to $13,000 per month as a delivery worker.  He was sacked by the company after this incident and he is now working as a construction worker earning $8,000 to $9,000 per month.  I am told that the defendant plans to marry Madam Tse when he is able to do so.  He gives her all his earnings and she gives him a small allowance for his daily necessities.

16.  I am told that the relationship between the defendant and the victim has been stormy for quite some time.  After he started to work for the company, Madam Tse started to work for the same company, as packaging worker.  Apparently the defendant and the victim had a number of arguments and the victim regularly scolded the defendant.  He taunted the defendant by saying that Madam Tse was having affairs with several co‑workers. The victim scolded the defendant’s mother and laughed at the defendant for raising somebody else’s son and giving all his wages to Madam Tse.

17.  I am told by defence counsel that in December 2012 the victim assaulted the defendant and a security guard called the police, but in the end the defendant decided not to pursue the matter.  The defendant asked the company to reassign him to another driver.  The company refused, saying that there were insufficient numbers of drivers to permit reassignment.

18.  On the day before the incident, when they were returning to the company, the victim told the defendant that he would poison Madam Tse and she would become dumb.  He again says that the victim alleged that Madam Tse was having affairs with other workers, and the defendant became very angry and alleged that the victim’s wife was a prostitute.  On the day of the offence, during the journey the victim told the defendant that he was lucky to get out of the van the day before or he would have beaten him up.  The victim continued to scold the defendant’s mother and also Madam Tse.

19.  Apparently when they arrived to deliver the goods to the restaurant, the defendant was carrying two bags of sugar.  I am told that these bags weigh 30 kilograms each, and the victim wanted the defendant to deliver another box as well.  The defendant concedes that there may have been some misunderstanding at this stage, because he says that he thought the victim threw the box at him, whereas the victim may have been trying to load it onto his shoulders.  Whichever version of events is true, it is clear that at that stage the box fell to the floor and each of them lost their tempers, and the incident which I have described earlier took place.

20.  Fortunately in this case the victim, according to the medical authorities, seems to have sustained no permanent injury.  He was discharged from hospital the same day.

21.  I am told that not only is the defendant remorseful about what happened, he is willing to pay compensation of $3,000 to the victim from his very limited income.

22.  I have before me two letters, one from Madam Tse and one from her son.  Madam Tse describes the defendant as being very supportive and taking good care of her and her son, and she says that the victim has frequently insulted her with foul language.  The son in his letter to the court says that the defendant has taken good care of him and his mother, and he is concerned about what will happen to the defendant.

23.  It is urged upon me that this was an isolated incident and out of character, and that it was an act committed in circumstances of extreme provocation.  I have looked at a picture of the knife.  It is a substantial weapon with a blade nearly 12 inches in length. 

24.  There is no doubt that the assault was continued by and contributed to by the actions of the victim.  On a number of occasions he retaliated.  At one stage the defendant turned round and walked away, the victim came at him.  On another occasion the defendant turned round and walked away, the victim dropped the trolley and followed the defendant.  They argued and shoved at each other, notwithstanding that the defendant was holding a knife, and the victim hit the defendant a few times.  Later, after the fight had stopped again, the victim picked up the trolley again and tried to hit the defendant with it, but missed, and the victim threw the trolley at the defendant, and again missed.  As I have said earlier, I have seen the trolley. It is a substantial metal trolley.  Had it connected with the defendant, the defendant would have sustained serious injury.

25.  The maximum sentence for this offence is a sentence of 3 years’ imprisonment.  Anybody who uses a knife on another person must expect to receive a custodial sentence.

26.  I accept in this case there was extreme provocation, and it was provocation which the defendant has had to suffer over a substantial period of time.  I am satisfied that on the day of this incident, the defendant completely lost his self control.  It is fortunate that the injuries were not more serious.  I accept that the defendant is now remorseful for what he has done.  He suffered immediately as a consequence losing his job and having to take a job paying far less wages.

27.  In the very unusual circumstances of this case I am prepared to take a lesser starting point than one would normally expect in a case of this type.  Given all the circumstances, I have decided that I will take a starting point of 9 months’ imprisonment and reduce that to 6 months to reflect the guilty plea, and I order that compensation of $3,000 be paid to the victim.