HKSAR v. LU A TUNG

DCCC 1203/2023

[2024] HKDC 1125

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1203 OF 2023

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REASONS FOR SENTENCE

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Overview

1.  The defendants pleads guilty to an offence of “Wounding with intent”, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap. 212 (“Charge 1”), and an offence of “Taking employment while being a person in respect of whom a removal order is in force”, contrary to section 38AA(1)(b)  and 38AA(2)  of the Immigration Ordinance, Cap. 115 (“Charge 2”).

2.  In gist, the defendant, feeling aggrieved by the dismissal, ambushed the victim, his superior, on her way home from work and attacked her with a kitchen knife.

Admitted facts

Charge 1

3.  PW1 was the shop manager of Bonnie Vegetables & Fruit Wholesale Limited in Ngau Chi Wan Village (“the Store”)  since October 2022.

4.  Since April 2023, the defendant worked as the night shift general worker at the Store.  Since 10 May 2023, PW1 found that the work performance of the defendant was unsatisfactory.  She related her view to PW2, the regional manager of the company and also advised the defendant about his performance over the phone.

5.  On 8 June 2023, in the absence of improvement, PW1 suggested to PW2 to dismiss the defendant.  The defendant, having been informed of the decision by PW2, tried to call PW1 but she decided not to answer the call.  At about 7:30pm on the same day, PW1 left the Store together with a colleague.  Later, when PW1 was walking alone in the subway leading to Exit C of Choi Hung MTR station, the defendant appeared with a kitchen knife in his right hand and something in his left hand. 

6.  At that juncture, the defendant, without saying a word, used the kitchen knife to slash PW1’s right hand, right thigh, right side of her back and left upper arm.  The defendant then fled. The attack lasted for about 20 seconds.

7.  A passer-by PW3 witnessed the attack after he heard the scream from PW1.  He saw the defendant slashed PW1 after she had fallen to the ground and there were a total of approximately 10 slashes.

8.  In the vicinity of the scene, the police seized an unopened chopper, its blade was 18cm in length and handle was 12 cm in length, whereas the kitchen knife could not be located. 

9.  As a result of the attack, PW1 suffered multiple lacerations on her limbs and back and an open fracture of the head of the middle phalanx of the right index finger.  She was hospitalized at the United Christian Hospital between 8 June 2023 and 30 June 2023.  An update of PW1’s condition reveals that although all her wounds were healed, she has to see physiotherapist for follow-up treatment.  Also, she suffers weakness at her right fingers and right anterior thigh; she feels pain at her upper left arm at night from time to time resulting in insomnia; she has nightmares recalling the incident[1].

10.  Upon police investigation, the defendant was arrested on 11 June 2023 and he was positively identified by PW3 in an ID parade on 13 June 2023.

11.  The surveillance CCTV footages in Sham Shui Po district and Ngau Chi Wan district captured that between 5:13pm and 6:40pm on 8 June 2023, the defendant purchased a kitchen knife and a chopper from a grocery shop and the length of the kitchen knife is similar to that of the chopper; before the attack, he was wandering near the scene wearing a black sleeve on his right arm and a pair of white labour gloves.

Charge 2

12.  On 25 June 2019, the Immigration Department issued a removal order against the defendant.

13.  Without complying with the order, the defendant continued to stay in Hong Kong and took up employment as a night shift general worker at the Store between a day unknown in 2023 and 8 June 2023.

Mitigation

14.  The defendant, aged 28, is a Form 8 holder from Vietnam since 2019.  He is now residing with his girlfriend in Hong Kong and they have baby girl aged 9 months.  He is relying on ISSA for living.  By way of personal background, I am told that he was raised in an orphanage in Vietnam and he received education up to secondary level.  Before he came to Hong Kong, he worked as a hawker selling lottery tickets.  It is also stressed that due to the lack of parental guidance and love, he has poor emotional control and self-restraint which attributes to the commission of Charge 1.

15.  Mr Leung, on behalf of the defendant, submits that since April 2023, the defendant was employed by PW1 as a night shift worker on a daily wage of HKD800 and his main duty was to unpack and divide wholesale fruit and vegetables.  Due to long working hours, the defendant considered to quit the job.  PW1 then made a promise of pay rise to HKD1,000 per day in order to retain his service.  However, PW1 never honoured her promise.  On the day in question, PW1 unreasonably criticized his work performance, resulting in an argument between them.  Eventually, he was dismissed by PW1.  Against this background, he felt “extremely cheated, exploited, enraged and provoked”[2]. Under these circumstances, he went out to buy the knife in question to commit the offence.

16.  The defendant has a clear record, but he has an outstanding case of unlawful remaining.  It is suggested by the defence that the defendant is willing to testify against PW1 in the prosecution for an offence of employing a person who is not lawfully employable.  As a result, the case was adjourned on 30 May 2024 for the defendant to give a non-prejudicial statement to the prosecution.  However, the prosecution finds the statement of no practical use and will not institute prosecution against PW1.   By and large, he is now very remorseful and promises never to reoffend.

17.  For Charge 1, Mr Leung prays in aid of the sentences passed in seven cases[3] and argues that the facts of the present case are less culpable than those emerged in these cases.  Therefore, as it is averred, the appropriate sentence should be in the range between 3 years and 4 years.

18.  As to totality, having accepted the sentencing guideline laid down by the Court of Appeal is one of 15 months’ imprisonment upon plea for Charge 2, it is submitted that “both offences are not distinct” and “occurred within a short time of each other (around 1 hour)”[4] and the sentences of Charge 1 and 2 should therefore run concurrently in full.

Sentencing

Charge 1

19.  In HKSAR v. Wong Luk-sau, CACC 2/2012, the Court of Appeal observed that:

“16. There are no sentencing guidelines for the offence of wounding with intent. In Hung Kar Chun the Court of Appeal established a range of 3 to 12 years’ imprisonment for this offence (see Yuen Wai Kui).

17. It is true that the range of 3 to 12 years is not a sentencing tariff, and the court is not obliged to impose 3 years’ imprisonment as the minimum term.”

20.  In HKSAR v. Ma Tik Lun Dicky, CACC 112/2013, the Court of Appeal encapsulated the sentencing principles for an offence of wounding with intent:

“40. In HKSAR v Chan Chun Tat [2013] 6 HKC 225, the Court of Appeal reiterated that “wounding with intent” is a serious offence which warrants a deterrent sentence, and that the major sentencing considerations are :

(1)  the extent to which the assault was premeditated;

(2)  the motivation underlying the assault;

(3)  the mental or emotional state of the assailant;

(4)  whether the assailant was acting under the influence of alcohol or drugs;

(5)  whether the assault was committed by the assailant alone or as part of a group;

(6)  the type of weapons employed;

(7)  the level of force used;

(8)  the injuries caused to the victim;

(9)  the effect of the assault upon the victim (and those close to him or her).

......

41. Furthermore, the aggravating factors for this type of wounding case are: (1)  the defendant was the principal offender; (2)  the assault was committed in company; (3)  the assault was unprovoked; (4)  the assault took place in a public place; (5)  the assault went on after the victim had fallen down; (6)  the assault went on after the victim became unable to defend himself; (7)  the victim suffered serious and lasting injuries; (8)  at the police interview, the defendant misled the police as to the facts, indicating a lack of remorse. See paragraph 13 of the Reasons for Judgment in HKSAR v Chui Kwok Ming, CACC 380/2013 (unreported), 27 March 2014.”

21.  In the present case, the defendant’s unlawful act entirely stemmed from the grievance and anger he nursed against PW1 for his dismissal.  It is all too common that an employee will feel frustrated in facing employment termination.  An aggrieved employee should never resort to violence as a means to vent his or her anger under any circumstances, albeit he or she may disagree with the decision or consider it unreasonable or unjustified.  The attack carried out by the defendant was undoubtedly a planned revenge for his treatment at work.  The sentence must hence carry deterrent effect in that the defendant should be firmly deterred from resorting to weapons and violence.  In my view, there is a strong need for deterrence, generally and individually, in sentencing.

22.  In mitigation, it is submitted by Mr Leung that “the degree of pre-meditation was only around 1 hour in advance of the attack as a result of PW1’s oral dispute with D; D was furious as he felt cheated and provoked by PW1 at the material time” and “he felt provoked by PW1 at the time of the attack.”[5]. If I understand the submission correctly, it is suggested that the act of the defendant was less culpable, as compared with other decided cases, in terms of planning and his mental status.  With respect, I do not agree.

23.  Firstly, prior to the attack, the defendant left the Store and attended a grocery shop in Sham Shui Po district. Secondly, he bought a kitchen knife and a chopper, the blade of each of them was approximately 18 cm in length.  Without a doubt, those are lethal weapons capable of causing serious and fatal injuries.  Therefore, he must have the intent to inflict really serious bodily harm on PW1.  Thirdly, he returned to the vicinity of the Store and waited for PW1.  In my view, it is not an exaggeration to describe his act as a planned ambush on a defenseless victim in a public place.

24.  In Secretary for Justice v. Hung Kar Chun, CAAR 9/2010, Cheung JA gave a practical definition of premeditation:

“11(2)  This was not purely an unpremeditated case. It was not the case that the respondent offhandedly picked up an object at the scene to attack PW1 when he was engulfed in rage. His acts were planned and malicious: after the two had an argument over the phone, the respondent left the mall and took a 10 minutes’ walk to buy the weapon before returning to the mall. On the way, he even phoned his girl friend, making threatening remarks to PW1. This is different from the circumstances where a person attacked another person having lost control of his emotions as a result of a dispute.”

25.  Insofar as his mental status is concerned, assuming that he had heated argument with PW1 as alleged by Mr Leung (which is contrary to the Summary of Facts to which to the defendant admits), he subsequently left the Store and he must have time to cool himself off. However, he planned to take revenge on PW1 by way of a vicious attack, which was not carried out at the spur of the moment.  I do not accept that he committed the offence due to sudden and momentary loss of self-control, let alone provocation.

26.  In the course of mitigation, I have been referred to a number of cases, one of which is a Court of Appeal judgment, one is from the Court of First Instance and 5 are District Court decisions[6].

27.  Time and again, the Court of Appeal has reiterated that for an offence of wounding with intent, the circumstances and factual matrix differ from case to case and the other decided cases are of limited assistance in sentencing.  In Ma Tik Lun Dicky, supra, the Court of Appeal restated that:

“39. … In our judgment, it cannot be a correct sentencing approach to compare sentences imposed in different cases: each case involves its own set of facts and little purpose will be served by comparing sentences imposed on the basis of different facts.”

28.  On the contrary, under a close scrutiny, I am not able to agree that the defendant’s criminality was less serious than the decided cases cited by the defence. The facts of the present case are clearly distinguishable from the cases cited.

29.  In Chung Wai Chung[7], the attacks, as found by the learned judge, were not premeditated as the assailants picked up the weapons from the vicinity.  The learned judge also found that the weapons were not lethal in nature.  I note that it is not mentioned in the Defendant’s Written Mitigation that the learned judge indeed took a starting point of 5 years for an offence of “Causing grievous bodily harm with intent” which is under the same offence-creating provision, ie section 17(a), as Charge 1.

30.  In Dinh Khac Muoi, Lau Yuk Huen and Lee Chun Lok[8], all these cases involved domestic violence in which the defendants picked up the weapons from the kitchens in the heat of argument.

31.  In Mohammad Munsur[9], the defendant attended the scene with a weapon was to talk out the monetary dispute with PW1 while PW2 was also carrying a weapon at the material time.

32.  In Shakeal Awais[10], the weapon involved was a cutter which was intended to be used in stealing and the learned judge remarked that “the type of weapon employed is not usual form of weapon used in these kind of wounding with intent cases, there is no chopper or knife used.”[11]

33.  In Limbu Sangam[12], the defendant attacked the victim with chopper in the washroom of a restaurant after hearing a racist slur, though he was not sure if it was uttered by the victim who was a patron.  The learned judge passed the sentence on the basis that the attack was not premeditated and the chopper “is a tool easily found in the kitchen area.”[13]

34.  For the present sentencing purpose, I take into account the following factors:

(1)  It was not an impulsive attack and it was premeditated. He purchased the weapons before the attack and wore a pair of white gloves. He waited for PW1 on her way home from work in the vicinity of the MTR station;

(2)  The attack was clearly an revenge for his dismissal;

(3)  It took place in a public place.

(4)  The weapon used was a kitchen knife. The defendant also carried a chopper with him. They were lethal weapons;

(5)  The defendant continued to attack after PW1 had fallen to the ground. The entire attack lasted for about 20 seconds with about 10 slashes; and

(6)  PW1 sustained multiple lacerations on her limbs and back, and an open fracture on right index finger.

35.  In the present case, it was only fortuitous that the injuries suffered by PW1 were not fatal and the wounds were fully healed.  I would not lose sight of the fact that PW1 now experiences weakness at her right fingers and her right thigh and the psychological trauma.  In any event, the lack of permanent and serious injuries will not lessen the defendant’s culpability.  In HKSAR v. Tung Pak Fai, CACC 231/2021, M Poon JA observed that:

“21. Given the many imponderables as to why an assailant failed to achieve the injuries intended by him, the actual injuries caused is only one of the myriad of factors to be taken into account. The gravamen of the offence is in the intent to inflict really serious injuries, which is the same intent as that required for murder. The lack of serious injuries does not necessarily reduce the gravity of the offence or offset the other aggravating factors.”

36.  Having considered all the circumstances and everything urged upon me on behalf of the defendant, I take a starting point of 4 years and 6 months, or 54 months.

Form 8 holder

37.  The defendant is an asylum seeker from Vietnam since 2019.

38.  It is trite law that it is an aggravating feature where a defendant is a Form 8 holder if he commits a crime in Hong Kong.  In HKSAR v. Singh Gursevak, CACC 139/2018, the Court of Appeal, after applying HKSAR v. Ali Saif, [2018] 6 HKC 19, succinctly summarized the relevant principle as follows:

“38. The following principles can be derived from this passage of the judgment:

(i)  the purpose of the enhancement is for the courts to “mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of the city”;

(ii)  the enhancement must be of such a length that it will deter Form 8 holders from becoming involved in serious crime; and

(iii)  in order for the enhancement to have a meaningful deterrent effect it generally should not be less than 6 months for serious offences.

39. Thus, the sentencing principles that underly the assessment of the amount of the enhancement are:

(i)  denunciation by the courts of criminal activity by Form 8 holders; and

(ii)  deterrence of all Form 8 holders from committing crimes while they enjoy the freedom to live in Hong Kong as they await the resolution of their claims.”

39.  At the hearing, I have invited submission from the defence on this aggravating feature.  Mr Leung, in his further mitigation submissions, takes no issue with the magnitude of the enhancement.

40.  Having considered the nature of the offence, I enhance the sentence by 6 months to reflect this aggravating feature. 

41.  In the result, the overall starting point for Charge 1 is 5 years, or 60 months.  The sentence is then reduced to 40 months for his timely plea.

Charge 2

42.  In HKSAR v. Usman Butt and Another [2010] 5 HKLRD 452, the Court of Appeal has laid down the sentencing tariff for this offence.  For a first offender, the appropriate sentence is one of 15 months upon a plea of guilty.

43.  I see no reason to depart from the above tariff and I therefore sentence the defendant to 15 months for Charge 2.

Totality principle

44.  In my judgment, Charge 1 and 2 are separate and distinct.  With respect, the assertion that “both offences occurred within a short time of each other (around 1 hour)” is wholly misconceived.  Timewise, Charge 2 alleges that the defendant took up employment for the period between a date unknown in 2023 and 8 June 2023 whereas the wounding offence took place on 8 June 2023.

45.  Applying the totality principle, I have to assess the overall criminality so as to arrive at a just sentence[14].

46.  In this case, the defendant was subject to a removal order since 2019.  Refusing to comply with the order, he took up employment in 2023 while he was unlawfully remaining in Hong Kong. Dissatisfying with his dismissal, he carried out a brutal and savage attack on PW1.  Obviously, the defendant flagrantly disregarded the law.

47.  Apart from his timely plea, I see no other mitigating factor which warrants further reduction.  Having considered the matter in the round, I order 8 months of the sentence for Charge 2 be run consecutively to the sentence of Charge 1.  In the result, the final sentence is one of 4 years, or 48 months, representing a notional overall starting point of 6 years, or 72 months’ imprisonment.

Conclusion

48.  By reasons of the aforesaid, the defendant is sentenced to 4 years’ imprisonment.

Annex 1

PW1’s Injuries

19.  PW1 attended the Department of Accident & Emergency of the United Christian Hospital on 8 June 2023 and was discharged on 30 June 2023.

20.  As a result of D’s attack in the Incident, PW1 suffered the following injuries:

a.  Left Proximal Upper Arm: a 10 cm transverse laceration over left proximal upper arm, just distal to posterior aspect of deltoid muscle but proximal to spiral groove.  The long head and lateral head of the triceps were completely cut, while the medial head of the triceps sustained a 20% cut.

b.  Right Anterior Thigh:

i.  A 14 cm laceration located over the proximal anterolateral thigh and involved a 20% cut of the vastus lateralis muscle;

ii.  A 17 cm laceration (oblique in orientation)  over the anterior distal thigh resulted in 20% cut of the vastus medialis muscle;

iii.  A 9 cm laceration lateral to the second laceration caused a 10% cut of the vastus lateralis muscle;

c.  Right Hand:

i.  A 3 cm oblique laceration over the right hand’s first web, extending to the thenar space, resulted in the complete cut of the abductor pollicis brevis and opponens pollicis muscles, while the digital nerve remained intact;

ii.  An open facture of the head of the middle phalanx of the right index finger was identified, accompanied by bone and tissue loss.  The bone loss involved more than 50% of the articular surface, specifically the radial condyle of the middle phalanx head.  A tissue loss of approximately 1 x 1 cm in size was observed at the dorsal aspect of the mid-middle-phalanx level;

d.  Proximal Interphalangeal Joints: lacterations over proximal interphalangeal joints of middle, ring and little finger, with each laceration around 2 cm.  The central slips and capsules of each finger suffered an 80% cut;

e.  Right upper back: A 5 cm oblique laceration over right upper back, deep to subcutaneous level; and

f.  Acute stress response was noted with suicidal ideation.

21.  PW 1 was followed up in the out-patient clinic on 11 July 2023 and 14 August 2023.  Physical examination showed that all her wounds were healed.  The power of left elbow extension and right knee extension was full.  There was stiffness over all proximal interphalangeal joints with 6 cm finger-tip-to-palm distance.  The active ranges of flexion of index finger, middle finger, ring finger and little finger proximal interphalangeal joint were 70 degrees.  90 degrees, 90 degrees and 70 degrees respectively.  Elson test was negative over middle to little fingers.  X-rays of right index finger showed healing of fusion site.

22.  PW1 was referred to the Physiotherapy Department of the United Christian Hospital for treatment.  From 18 September 2023 and 19 February 2024, PW1 attended a total of 3 physiotherapy treatment sessions and reported 60% subjective improvement with physiotherapy on 26 October 2023.

23.  PW1 was also referred to the Department of Occupational Therapy of the United Christian Hospital for remedial class treatment.  PW1 attend 1 session of treatment on 21 November 2023.

24.  Another statement was taken from PW1 on 21 May 2024 explaining her recent medical conditions.  According to PW1, since the incident, she was required to attend medical appointments as a result of her injuries.  She could not carry heavy goods with her right fingers.  She would also feel pain at her upper left arm at night from time to time and could not fall into sleep because of the pain.  She experienced weakness at her right anterior thigh and would from time to time experience muscle spasm.  Further, at night, she would have nightmares recalling this incident.