HKSAR v. KWOK MAN TO

DCCC737/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 737 OF 2011

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Reasons for Sentence

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1.  The defendant enters a plea of guilty to one charge of “Attempted wounding with intent”, laid against him under section 17(a) of the Offences against the Person Ordinance, Cap.212, and section 159G of the Crimes Ordinance, and one charge of “Criminal intimidation”, preferred under section 24(a)(i) and 27 of the Crimes Ordinance, Cap.200.

2.  The facts to which the defendant agrees are as follows. The defendant, 64 years of age, used to be married with the victim, who is now 61, and they had three daughters; but in 2001, they got divorced.  Since 2008, the defendant kept asking the victim for a loan.  His requests were refused.  The defendant then asked his daughters for money.  His demand was ignored.  On the day in question, as the victim was going home with her granddaughter, she heard a loud voice calling out at her from behind.  She turned around only to find the defendant within two feet of her, holding a hammer in the right hand.  The victim asked the defendant what he was doing.  In return, the defendant struck the victim with the hammer, aiming at her head.  The victim warded off the blow with her granddaughter’s blanket which she happened to be carrying in her hand, but the defendant continued the attack two to three times.  Fortunately, the victim succeeded in warding him off. 

3.  An off-duty police officer walked past.  He pushed the defendant onto the ground.  The defendant put up a struggle, but the officer managed to disarm him.  When they got up, the defendant pointed an 8-inch long fruit knife at the officer and the victim and advanced towards them.  In fear of further attack by the defendant with the use of the knife, the officer led the victim to flee.  During the escape, the officer lost balance and fell down. When he got up, he saw the defendant put the fruit knife inside his shopping bag. 

4.  The officer tailed the defendant at a distance, and met a team of five plainclothes police officers, who joined in the pursuit of the defendant.  When the defendant arrived at a bus terminus, the officers arrested him.  They found a fruit knife, together with a couple of suicide notes, in the defendant’s possession.  Under caution, the defendant alleged that the victim owed him money, so he used the hammer to teach her a lesson.  He further alleged that he took out the knife for self-defence and to scare the off-duty police officer away.  He had no intention, he said, to cause grievous bodily harm to the victim and he had only wanted to hit her legs; but when he tried to hit the victim in the thigh, the victim returned blows using a bag, and then the off-duty officer appeared, pushed him down, and took the hammer away.  Thinking that the officer might use the hammer to hit him, the defendant took out the knife, a knife he said he carried for the purpose of committing suicide.  He said that after he had taught the victim the lesson, he would kill himself. 

5.  By pleading guilty to the two charges, the defendant admits he had the intention of causing the victim grievous bodily harm and of threatening the victim and the officer with injuries to them, to alarm them.  The court finds the defendant guilty as charged. 

6.  In mitigation, the defence puts forward the following matters for the court’s consideration.  The defendant has had hitherto a clear record.  The defence asks the court to attach full weight to this mitigating circumstance; after all, the defendant is now 64.  The defendant is remorseful, his clemency letter shows that he truly regrets what he has done, and he affirms his full remorse by pleading guilty before this court.  As to the defendant’s background, counsel for the defence submits that the defendant used to work as a manager, making a respectable income, but in 2008, he was retrenched due to the economic downturn.  Worse, he got cheated by a business partner of $100,000 to $200,000.  He was then forced to retire.  The defendant had been married with the victim for 35 years before the marriage broke up in 2001, at which time, he has had a son born out of a relationship with a lady on the Mainland.  Later, the defendant solemnised his relationship with this lady who became his second wife.  Since 2008, the second wife has been working as a saleslady to support the family, while the defendant received a total of $1,200 a month from his three grown-up daughters.  

7.  A couple of days before the offences, the defendant’s young son had an accident and was in need of medical attention.  Unable to pay for the expenses, the defendant sought assistance from the three daughters, but was ignored.  Saddened by this treatment of his daughters’ and very much worried for his young son, the defendant decided to arm himself with the hammer and came to Hong Kong to teach the victim a lesson; he blamed the victim for the daughters’ cold attitude towards him.  And the defendant had planned to stab himself after attacking the victim, and to throw himself to the sea. 

8.  The defence asks the court to be as lenient as possible to the defendant, who has no means to contact the second wife and the young son directly, and who stands at risk of losing this second family if he is imprisoned for a significant period of time. 

Discussion

9.  There is no sentence guideline for the two offences of which the defendant stands convicted, so each case depends on its own facts. 

10.  The law accords high priority to the well-being of the person, for it is in the public interest to protect a citizen from harm and injuries.  Offences involving the use of violence, actual or threatened, cause grievance to the victim and disturbance to the peace.  Worse, these offences can lead to reprisal or retaliation with severe consequences.

11.  In this case, the defendant armed himself with a hammer, a deadly weapon, with which to attack the victim.  There is clearly a degree of premeditation to the defendant’s act.  

12.  He said under caution that he would kill himself after attacking the victim.  The court is of the view that he was determined to cause the victim very serious harm before killing himself, and that explains why he aimed at the victim’s head and delivered not just a single blow, but two to three blows.  Fortunately, the victim has had the blanket and successfully warded off the defendant’s attack.  

13.  The defendant was disarmed but he did not desist. He took out another deadly weapon, an 8-inch long knife, and advanced towards the victim and the officer. 

14.  The court bears in mind all the mitigating circumstances advanced on the defendant’s behalf.  Selecting as low a starting point as possible, the court is of the view that an overall starting point of 24 months would adequately reflect the criminality of the two charges.  Little in the defendant’s personal and family circumstances would warrant any further reduction.  The facts show that the defendant has abandoned the victim and three daughters to set up a second family on the Mainland, but found himself unable to adequately provide for this second family; he has only himself to blame. 

15.  In all the circumstances, the court would adopt a starting point of 18 months’ imprisonment for Charge 1, and, in view of the defendant’s clear record and guilty pleas, reduce it by one-third to one of 12 months’ imprisonment.  A starting point of nine months would be appropriate for Charge 2, which is likewise reduced by one-third to one of six months’ imprisonment.

16.  Having considered the totality principle, the court orders that four months of the sentence for Charge 2 should run consecutively to the 12 months’ imprisonment for Charge 1, resulting in a final sentence of 16 months’ imprisonment.

Order

17.  The defendant is sentenced to a term of imprisonment of 16 months.