HKSAR v. HO KWOK CHEONG

DCCC 86/2019

[2019] HKDC 1739

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 86 OF 2019

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REASONS FOR SENTENCE

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Introduction

1.  The defendant is convicted upon his own guilty plea of the following five charges:-

1^st Charge: Assault occasioning actual bodily harm (on 4 September 2018 against Lee Ting Wai)

2^nd Charge: Wounding (section 19) (on 5 September 2018 against Nguyen Tuan Ahn)

3^rd Charge: Wounding (section 19) (on 15 November 2018 against Ng Chor Fan)

4^th Charge: Wounding (section 19) (on 15 November 2018 against Ho Shing Tai)

5^th Charge: Criminal damage (on 15 November 2018 on a door)

Facts

Charge 1

2.  At about 9:40 am on 4 September 2018, Mr Lee Ting Wai (“Mr Lee”) was standing outside No 211 Apliu Street, Sham Shui Po, Kowloon.  He noticed the defendant was pushing a trolley moving towards his direction.  There were a bicycle and a few bicycle components on the trolley.  When the defendant was about 6 feet away from Mr Lee, the defendant picked up a bicycle seat with a 50 cm long seat post (the “Object”) and swung it in front of him.

3.  The defendant suggested to have a fight with Mr Lee.  He then held the Object, ran towards Mr Lee and hit the right side of Mr Lee’s head with the Object.  As a result thereof, Mr Lee sustained an abrasion wound over his right temporal region which was reddish with mild swelling and mild tenderness.

4.  The defendant was arrested on 4 September 2018.

Charge 2

5.  At all material times, the flat situated at 1^st Floor, No 205 Apliu Street, Sham Shui Po, Kowloon (“Flat 1”) was a sub-divided flat with a common bathroom. Mr Nguyen Tuan Anh (“Mr Nguyen”) lived in Room E of Flat 1 whereas the defendant lived in Room A thereof.

6.  At about 11 pm on 5 September 2018, Mr Nguyen asked around Flat 1 to see if anyone had taken his wallet.  The defendant came out of Room A and shouted at Mr Nguyen.  Mr Nguyen returned to Room E to avoid confrontation.  Shortly afterwards, the defendant went into Mr Nguyen’s room with a screwdriver in his hand and asked if Mr Nguyen was saying that he (the defendant) stole the wallet.  The defendant then hit Mr Nguyen’s head with the handle of the screwdriver 2 to 3 times.  He also hit Mr Nguyen’s nose and mouth with his hand.  As a result, Mr Nguyen sustained laceration at his left lateral eyebrow and a deformed nose.

7.  The defendant was arrested on 6 September 2018.  Under caution, he admitted that he had followed Mr Nguyen to his room and hit him with a screwdriver.

Charges 3, 4 & 5

8.  At all material times, the flat situated at Flat C, 2^nd Floor, Ka Shun Building, Sham Shui Po, Kowloon (“Flat 2”) was sub-divided into 11 units with a common bathroom.  Those sub-divided units were rented out individually.  There was a corridor leading from the main door at the entrance to the units.  Six of the units were on the right side of the corridor and five units were on the left side of the corridor.  Mr Ng Chor Fan (“Mr Ng”) lived in the last room on the right side of the corridor whereas the defendant lived in the room next to Mr Ng’s.  

9.  At about 1:15 am on 15 November 2018, when Mr Ng was walking along the corridor from the bathroom towards his room, the defendant was standing in the middle of the corridor outside his room.  Mr Ng asked the defendant to give way.  Suddenly, the defendant took out a chopper from his room and held it in his hand.  The defendant chopped Mr Ng’s left ear and shoulder.  Mr Ng immediately turned around and ran towards the bathroom.  As a result, Mr Ng sustained tenderness and laceration on his left ear and left clavicle.

10.  At that juncture, Mr Ho Shing Tai (“Mr Ho”) who lived in another room of Flat 2 heard the noise outside and opened the door to check what was going on.  Without saying anything, the defendant used the chopper in his hand to chop Mr Ho’s forehead.  Mr Ho immediately returned to his room and closed the door.  As a result, Mr Ho sustained tenderness and laceration on his scalp.

11.  At the same time, another resident Mr Wu Yuk Sing (“Mr Wu”) opened the door to see what was going on.  He saw Mr Ng standing near the bathroom with bloodstains all over his body, and the defendant standing at the corridor holding the chopper.  Mr Wu immediately called the police.

12.  Mr Wu then went out of his room and saw the defendant chopping Mr Ho’s room twice and murmuring “I don’t want to see you”, “it is none of your business” and “why came out to watch”.  The defendant said to Mr Wu that he did not want to see Mr Ng anymore.  Mr Wu immediately took Mr Ng downstairs.

13.  After the incident, Mr Ho’s door was damaged.  Upon search, the chopper was found inside the defendant’s room.  The defendant was arrested.

Previous criminal record and antecedents

14.  The defendant has 37 previous convictions, out of which there were:-

• 1 conviction of assaulting a police officer sentenced in January 1998;

• 4 convictions of common assault sentenced in April 2012, August 2013 and June 2018;

• 1 conviction of section 19 wounding sentenced in June 2018; and

• 1 conviction of criminal damage sentenced in August 2013.

15.  The defendant was born in July 1976 and is now 43 years old.  He received education up to Form 2 level.  His wife and 5-year-old son live in the Mainland.

Mitigation

16.  Ms Ku on behalf of the defendant relied on her written mitigation dated 16 December 2019.

17.  In addition to setting out the defendant’s personal background and the circumstances leading to the commission of the present five offences, Ms Ku also referred this court to the following judgments:-

• 香港特別行政區訴梁志雄 HCMA 676/2010

• HKSAR v Chan Siu Nga HCMA 1093/2001

• HKSAR v Ng Wai Lung HCMA 239/2002

• 香港特別行政區訴鍾偉鑫 HCMA 442/2011

• 香港特別行政區訴馮橋穩 HCMA 140/2012

• 香港特別行政區訴陳立豪 HCMA 87/2015

• 香港特別行政區訴陳文烙 HCMA 301/2016

18.  Two medical reports and three mitigation letters were also submitted to this court for consideration.

Discussion

19.  Regarding the 1^st and 2^nd Charges, Ms Ku submitted that the defendant had heated arguments with the victims prior to the commission of the respective offences.  Even if what was submitted was true, I do not consider it an acceptable excuse for what the defendant did, especially in the 2^nd Charge when the defendant had a screwdriver in his hand but Mr Nguyen had none.  Neither do I consider it an acceptable excuse that the defendant committed the offences in the 3^rd to the 5^th Charges because of his loss of control after having consumed ICE.

20.  In relation to the judgments Ms Ku referred to, I have the following observations:-

• No weapon/object was used in the attack in 梁志雄case but the Object, a screwdriver and a chopper were used in the present case.

• The 6-month imprisonment sentence imposed in Chan Siu Nga was considered by Deputy High Court Judge McMahon (as he then was) “quite lenient”: paragraph 13 of the judgment.

• Community service orders were imposed in Ng Wai Lung and 馮橋穩. As the defendant in this case has a long history of convictions, community service order is out of the question.

• In 鍾偉鑫 case, Deputy High Court Judge Toh (as she then was) did not say anything more than that the sentence of 6-month imprisonment imposed by the trial magistrate was not manifestly excessive.

• Likewise, in 陳立豪case, Deputy High Court Judge Yau did not say anything more than that the sentence imposed by the trial magistrate was not manifestly excessive.

• In 陳文烙case, the appellant did not have any previous conviction involving violence and the attack was on the victim’s thigh once using a piece of broken ceramic dish. In the present case, the defendant has 7 previous violence-related convictions. Further, all the attacks in the 1^st to the 4^th Charges were at the victims’ heads and a chopper was used in the 3^rd and the 4^th Charges.

21.  Apart from the judgments referred to by Ms Ku, I have also considered a few cases:-

• In HKSAR v Chan King Yun James CACC 384/2011, during an originally friendly basketball game in Victoria Park, the appellant thrust back his elbows into the body of the opposing player who was then standing behind the appellant. The appellant then turned so that he was facing the opposing player and punched him in the face. The opposing player was seen to tremble, fell backwards and hit his head on the ground. As a result, the opposing player suffered serious injuries to the area of his brain and became unable to speak, feed himself, get out of bed, walk or do anything for himself. The Court of Appeal said the 20-month starting point imposed by the trial judge fell well within the parameters of her discretion.

• In Secretary for Justice v Yu Yat Sang [2011] 1 HKC 155, the victim in the second charge of wounding suffered a 6- inch long cut wound on his right forearm as a result of the attack by the appellant with a chopper. The appellant had a clear record. Regarding the use of a chopper, the Court of Appeal said in paragraph 24 of the judgment that:-

“. . . The weapon used is a vicious weapon. . . The attacks themselves were serious; in the case of PW1, the chopper was directed to the region of the head as well as to the back and it is precisely this type of attack that can lead to consequences considerably more serious than those which were occasioned in this instance. . . ”

The Court of Appeal was of the view that the starting point of 18 months imposed in the second charge was low.

• In R v Tsang Chi HCMA 727/1987, the appellant and the victim had been friends for some years. At the material time the appellant was peeling potatoes and had a chopper in his hand. The two of them had an argument and they began to fight. The appellant struck the victim on the forearm, causing a deep wound of 8 cm long and rupturing the tendon. A term of 2 years’ imprisonment was imposed by the magistrate upon the appellant’s guilty plea. The appellant’s appeal against sentence was allowed and the sentence was reduced to one of 12 months.

22.  In the present case, the defendant used various objects, including a screwdriver and a chopper in committing the offences in the 1^st to the 4^th Charges.  Fortunately, the injuries sustained by the victims were not too serious.  (In this regard, the photos of Mr Nguyen show that he had stitches on his left eyebrow, and the photos of Mr Ng show that he was medically treated with 5 stitches.)  Further, the defendant committed the offence in the 2^nd Charge 1 day after he was arrested for the offence in the 1^st Charge, and then committed the offences in the 3^rd to the 5^th Charges two months after he was arrested for the offences in the 1^st and 2^nd Charges.  Note must also be taken that the defendant has 7 previous violence-related convictions.

Sentence

23.  Having carefully considered the facts of this case, mitigation advanced by Ms Ku and various judgments, I adopt the following starting points for the following charges:-

1^st Charge: 3 months’ imprisonment

2^nd Charge: 6 months’ imprisonment

3^rd Charge: 18 months’ imprisonment

4^th Charge: 18 months’ imprisonment

5^th Charge: 3 months’ imprisonment

24.  One-third discount is given to the defendant as he indicated his intention to plead guilty at the earliest opportunity.  There being no further valid mitigating factors justifying further reduction in sentence, the respective sentences for the present five charges are reduced as follows:-

1^st Charge: 2 months’ imprisonment

2^nd Charge: 4 months’ imprisonment

3^rd Charge: 12 months’ imprisonment

4^th Charge: 12 months’ imprisonment

5^th Charge: 2 months’ imprisonment

25.  On totality, 1 month’s imprisonment in the 1^st Charge, 1 month’s imprisonment in the 2^nd Charge and 4 months’ imprisonment in the 4^th Charge are to run consecutively with the 12 months’ imprisonment in the 3^rd Charge, all other sentences are to run concurrently.  The total sentence is therefore a term of 18 months’ imprisonment.