HKSAR v. LAW TUNG YUEN

DCCC 615/2017

[2018] HKDC 563

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 615 OF 2017

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REASONS FOR SENTENCE

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1.  Defendant pleaded guilty to a charge of wounding with intent, contrary to section 17(a) of the Offences against the Persons Ordinance, Cap 212, and was so convicted.

2.  Defendant has been a tenant of a cubicle amongst 15 cubicles in a one-storey hut in Fanling since year 2011, and PW1, the victim, is the landlady. 

3.  On 25 April 2017, at around 8:30 am, a dispute arose between the Defendant and PW1 over dog barking.  At around 10:30 am on the same day, PW1 went to Defendant’s cubicle and told Defendant to vacate from the cubicle next month. PW1 then went to the backyard of the hut and sat there.  Suddenly, she felt hot water poured on her head.  She turned around and noticed Defendant was holding something in his right hand.  Defendant ran into the kitchen and re-emerged five seconds later with a chopper.  He chopped PW1 on her forehead and when he tried to chop PW1 again, PW1 raised her left hand to fend herself, resulting in her left elbow being chopped.  PW1 tried to run away from the Defendant, during which her back was chopped three times.  PW1 found a metal shovel and held it towards the defendant.

4.  At this point, PW2, who was also sleeping inside the hut, heard the commotion and rushed down.  PW1 and Defendant were standing about 1.5 metres apart.  PW2 shouted at Defendant and told him to stop. Defendant put down the chopper and told PW2 that he expected to be sent to prison.

5.  Later, Defendant was arrested and cautioned upon arrival of police officers.  Under caution at the scene of arrest, Defendant confessed that he chopped PW1 because PW1 always reprimanded him and terminated his lease.

6.  In a subsequent video-recorded interview, Defendant confessed pouring hot water on PW1 because he was angry.  He also grabbed a chopper and chopped PW1 several times.

7.  As a result of the incident, PW1 sustained second-degree partial thickness burns over left half of her face, shoulder, right forearm, left upper chest wall and right anterior thigh, involving around 10 per cent of her total body surface area.  She also suffered 4-cm subcutaneous laceration wound at the left temporal region, a 5-cm full thickness laceration wound at the posterior aspect of her lower arm, and four superficial laceration wounds measuring up to 4 cm at her back. 

8.  Defendant had no previous criminal record save for four convictions for gambling in a gambling establishment way back in year 1992.  I would therefore treat him as a man of clear record in sentencing.

9.  Defendant was aged 59 at the time of offence and he received education up to Primary 2 level.  He was divorced and lived alone.  He used to be a taxi driver until 2012 when his health deteriorated after he had a stroke in year 2010.  Since then, he survived on CSSA.

10.  Mitigation letter dated 2 January 2018 from PW1’s aunt, neighbours and fellow villagers were tendered to this court.  These letters say that the Defendant was a very helpful person, always helped to look after the elderly, attending to their needs, doing shopping for daily necessities for them and helping others to care for their pets, including cleaning and attending to the pets’ meals, sometimes bringing old people out for tea and buying takeaway meals for them, doing gardening for fellow villagers.  They say that the Defendant has a very good temper and would not harm people.  The incident they say should have been resulted from provocation and/or when the Defendant was under the influence of medication.  They urge this court to treat the Defendant leniently so that he can start afresh, and they also vow to help him starting afresh once he is released from prison.  

11.  Defendant himself also wrote to this court.  He is deeply remorseful and was very apologetic that he committed the present offence out of impulse and had brought harm to PW1.  He said that PW1’s husband died in the year 2013 and since then, he had been assisting PW1 in handling daily chores in the hut. 

12.  Mr Tse, counsel for the Defendant, submitted that prior to the incident, PW1 asked Defendant to be responsible for cleaning the toilets and the kitchen in return for her deduction of monthly $100 from his rental.  Since then, PW1 had always been complaining the Defendant for either that the Defendant had been using too much water or that the place was not clean enough. 

13.  PW1’s aunt, who also lived in the hut, had asked the Defendant to look after her dog while she went to work and to which Defendant agreed.  He fed the dog and took it out for walks.  On the day in question, as the dog was barking, PW1 asked Defendant to control the dog.  As the Defendant was not feeling well that morning and had taken some painkiller and antibiotics, he did not respond at once whilst PW1 insisted that he had to control the dog right away and a quarrel ensued between them and in the middle of which PW1 said she would not allow Defendant further to stay there and that Defendant had to move away at the end of the month.  These words angered the Defendant.  He felt during his stay in the hut all through these years he had been helping everyone, running errands and that he had been very helpful.  He was carried away and out of impulse, he committed the present offence. 

14.  It is said that the same is really one that is out of character for the Defendant.  At the time of the offence, the Defendant was deeply worried that he would become homeless if he were to be evicted by PW1 as he had only limited financial means and cannot afford renting other place. 

15.  It was further said that the kitchen where the Defendant took the chopper was very much near to the backyard where PW1 sat.  Defendant came to his senses at once when PW2 shouted at him and asked him to stop.  Defendant did put down the chopper.  He did not run away from the scene. 

16.  Mr Tse further submitted that since the offence, PW1 did not terminate the Defendant’s lease, and the nephew of PW1 had been paying the rent for the Defendant.

17.  For wounding with intent offences, there is no tariff or sentencing guideline.  In the case of HKSAR v Hau Ping Chuen [2008] 4 HKLRD 673, the Court of Appeal referred to the usual range of sentence for such offence, between 3 to 12 years. 

18.  In the case of HKSAR v Chan Chun Tat, CACC 317/2012, the court set out a number of factors to be considered in sentencing of such offence in order to determine the gravity of the offence and the culpability of the offender.  The same included the extent to which the assault was premeditated, the reasons or motivation underlying the assault on the victim, the mental or emotional state of the assailant at the time of the assault, whether alcohol or drugs contributed to the action of the assailant, whether the assault was committed by the assailant alone or is part of a group, the type of weapon 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.

19.  This court has considered all mitigation advanced on behalf of the Defendant, including but not limited to the fact that for the purpose of sentencing that he has a clear record, that he committed the offence after being provoked by the victim; at least subjectively in the minds of the Defendant, unreasonably threatening to terminate his tenancy which would result in the Defendant becoming homeless that the offence was really one out of character; that he acted alone and that the offence was not a premeditated act; in particular, that he was said by all the neighbours and co-tenant in the hut as being a man with a good heart, constantly helping others in looking after either elderly or others’ pets or doing errands for the other in need.

20.  On the other hand, this court noted that after pouring hot water onto the victim, Defendant still went to the kitchen and fetched a lethal weapon, the chopper, and attacked the victim again, this time chopping her left forehead, and when the victim tried to fend off the attack with her left hand, her left elbow was also chopped and further, when the victim wanted to flee, her back was chopped three times. 

21.  As a result of the hot‑water attack, the left side of PW1’s face, left upper limb, upper chest, right forearm and right thigh all suffered burn injuries, totalling 10 per cent of total body surface area.  PW1 also had to undergo skin grafting, taking skin from her left thigh to the affected areas followed by physiotherapy treatment and having to wear pressure garments at one of the affected areas 24 hours a day.  The wound of the left hand has not yet fully healed, and PW1 still needs ointment for painkilling and for avoiding itchiness. 

22.  According to PW1, during hot weather, she felt itchiness and tightening of the skin in the affected areas and she had to go to cooler areas to make herself comfortable.  As for the chop wounds, she received 8 stitches in the forehead and 12 stitches in the left lower arm.  PW1 in her statement says that she now felt pain in the stitched areas especially when she held heavy items in her left hand.  Therefore, she now preferred using the right hand holding heavy items and in performing daily household chores.

23.  During the attack, after pouring hot water, the Defendant persisted in attacking the victim, fortunately, he stopped when PW2 shouted and asked him to stop and the wound injuries were not as serious as they could be, which indicated that the Defendant had not been using high level of force when he chopped PW1.  The persistence in the chopper attack after the hot-water attack, the use of lethal weapon are both aggravating features in sentencing. Defendant’s attack on the concerned PW1 at the time was vicious and excessive. The effect of the assault of hot water is still continuing and PW1 has been put to great pain and anxiety during the course of treatment.  Luckily, for the PW1 and also for the Defendant, the chop wounds were mostly skin wounds and not as serious as the scalding.

24.  I accept the Defendant is a man of previous good character, the attack was not premeditated and was one that is out of character, and that the same was committed after provocation by PW1. 

25.  This court has considered and accepted the contents of the very persuasive mitigation letters from the many neighbours and fellow villagers and of course the one also from the Defendant.  This is a wounding section 17 charge, the sentence following an attack on an unarmed neighbour in a domestic environment with a lethal weapon preceded by hot-water attack even committed as a result of provocation must carry significant element of personal and public deterrence.  But accepting the very persuasive mitigation, in this case I am willing to adopt a sentencing starting point of 3 years and 9 months. Defendant has pleaded guilty timely and is entitled to one-third full sentencing discount.  Accordingly, the Defendant is sentenced to 2 years and 6 months’ imprisonment.