HKSAR v. LIU KA HO

DCCC 445/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 445 OF 2017

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Reasons for Sentence

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1.  The defendant pleaded guilty to a single charge of causing grievous bodily with intent, contrary to section 17(a) of the Offences against the Person Ordinance.

2.  The charge arises out of a dispute between construction workers at a construction site in Sham Shui Po.  Both the victim and the defendant were construction workers working at the site.

3.  In the morning of 19 August 2016, a dispute arose over the question of the parking of trucks on the site, and the victim and the defendant fell into a dispute along with other construction site workers.  During the dispute, the victim saw the defendant about 5 metres away from him, running towards him, holding a black iron rod.  There was a struggle between the victim and the defendant, and the defendant hit the victim’s right forehead with the black iron rod.

4.  Police were called.  The victim felt pain and dizziness.

5.  The defendant told the police he went to his own truck and got a 2-feet long black iron rod from below the driver’s seat and used that to hit the victim on the head.

6.  The victim was sent to hospital for medical treatment.  He was found to have suffered mild swelling and a faint bruise over his forehead.  A CT scan of the victim’s head showed a depressed fracture on the anterior wall of the right frontal sinus, which is in fact a depressed fracture of the skull above the eyebrow.  The victim was discharged on the same day, but was given sick leave until 25 August.  By the examinations on 21 August and 12 September, the victim was found to be neurologically stable, but had a complaint of right eye pain and discomfort.

7.  The last report I have is dated 21 April 2017, and this is from a Dr Tse.  She describes the victim as receiving a minor head injury, and she reviewed the depressed skull fracture and the physical examination she said did not reveal any focal neurological deficit. That report suggests there is no ongoing damage to the underlying brain tissue as a result of the injury.

8.  As far as the defendant’s antecedents are concerned, he is aged 34.  He has some previous convictions dating up to 2008. None of them are violence related.  He is married, with a 3‑year-old daughter. He is the sole breadwinner of his family.  His reason, he said, for becoming involved in the dispute was that he saw his father, in fact, on the site, being surrounded by other men, and went to his defence, and picked up the iron pipe.

9.  The defendant also says in mitigation he is remorseful; this was a weapon of opportunity taken from his vehicle; there was no premeditation in the commission of the offence; that although this was an attack to the head of the victim, no serious injury was in fact caused; and I note although there is what appears to be a skull fracture, this was described by the resident of the Department of Neurosurgery of Princess Margaret Hospital as being a minor head injury.  So it would appear that it is a weapon that could have caused serious injury, but it was used in such a way that fortunately, no serious injury was caused.

10.  I have been referred to mitigation letters from the defendant, his wife, his employer, the District Council, and a Tsuen Wan Rural Committee member and a social worker.  I have also been referred to the criminal appeal case 202/1985 R v Kwok Chi Ming, which is a somewhat old case now.

11.  As far as this particular offence is concerned, under section 17(a) of the Offences against the Person Ordinance, sentences can range from between 3 to 12 years’ imprisonment, and that reflects the range of injuries and the seriousness of the particular cases.  One can of course also find a number of cases where substantially lower starting points for sentences than 3 years’ imprisonment have been adopted.

12.  This is an offence where the sentences are largely dependent on the individual facts of each case.  The aggravating factor in this particular case is the nature of the weapon used and the location of the injury; the weapon was used to strike the head, and this has the potential to cause very serious injuries to the brain.

13.  The mitigating factor in this offence is that it was not a premeditated offence, and also the injuries, as I said, although on the face of them serious, were described eventually as being minor.

14.  Nevertheless, it is a serious matter in any kind of dispute to take an iron pipe to a person and strike his head with it, and the defendant is fortunate the outcome was as it was.  Also, it is a mitigating factor that the defendant did not press on with the attack, simply striking one blow.

15.  Nevertheless, I consider that the nature of this attack does require the imposition of an immediate custodial sentence.  There is always an element of deterrence in the sentencing of serious violent attacks on other people.

16.  Taking all these factors into account, I will take in this case a starting point of 21 months’ imprisonment and reduce that to 14 months’ imprisonment for the defendant’s plea of guilty.