HKSAR v. LEE HIM WAI

DCCC 988/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 988 OF 2013

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one offence of causing grievous bodily harm with intent, contrary to Section 17(a) of Cap 212, the Offences against the Person Ordinance.

2.  The defendant has agreed the facts and I have convicted him accordingly.

3.  The facts show that the incident for which the conviction arises occurred on 16 May 2013 in Pat Heung in the New Territories, and the background to the offence is that the victim a Mr Tong (and the 1st prosecution witness), a Mr Kwan (the second prosecution witness) and a Mr Leung and another person rented land in Pat Heung in the New Territories.  Each of those gentlemen had opened a garage at that location.  There was also storage at that location as well.  The defendant was a part-time technician with one of the garages that belonged to a man called Leung.

4.  On the day in question, the defendant drove a vehicle to Leung’s garage, which was on that premises.  One of the customers of the first prosecution witness’ vehicle was blocking the common vehicle access and the defendant had asked that customer to move the vehicle so he could gain access into Mr Leung’s garage.  Now, that person moved that vehicle but there were other vehicles blocking the entrance and the defendant had had to drive his own vehicle away. 

5.  At 1200 hours, Mr Leung and the defendant parked a vehicle outside the first prosecution witness’ garage and they went back to Mr Leung’s garage.  The first prosecution witness used a key of that vehicle, which was left inside it, and drove the vehicle to another location.  The first prosecution witness then returned to his garage.

6.  Some 35 minutes later at 1235, the first prosecution witness was working on a vehicle outside his garage.  He felt that he was hit by a hard object at the back of his head and felt pain.  When he turned, he saw the defendant holding a wooden block about 2 feet in length in both hands.  The defendant used this to hit the first prosecution witness’ right face.  The first prosecution witness felt dizzy and ran away.  The defendant chased after him and kept hitting his head with the wooden block, hitting the head at least four times.  Eventually, the first prosecution witness ran into the second prosecution witness’ garage and then fainted. 

7.  The second prosecution witness saw the first prosecution witness enter his garage, saw the defendant chasing after him and holding the wooden block, saw the defendant hit PW1 at the back of the head with the block, saw the first prosecution witness fall to the ground, and saw the defendant try to hit him again.  The second prosecution witness then stopped the defendant.  He told the defendant that the victim had fainted and the defendant’s reply was that it would be good to beat PW1 to death.

8.  The police were eventually called and spoke to the defendant.

9.  The defendant said he had grudges with PW1 and disputes had been about parking of vehicles on that day, so he picked up the wooden block and attacked PW1.  The wooden block (which was Exhibit 1) had been left on the ground.

10.  The victim was taken to Accident & Emergency Unit of the Pok Oi Hospital in Tuen Mun.  He was hospitalised from 16 May to 27 May. 

11.  The injuries are listed as follows:

1) tenderness and redness over the scalp;

2) superficial laceration and abrasion over the right eyebrow and periorbital bruising;

3) tenderness over the neck;

4) left-sided hearing loss and left haemotympanium;

5) left parietal thin acute subdural haematoma;

6) left epidural haematoma;

7) subarachnoid haemorrhage;

8) pneumocephaly;

9) fracture of the left temporal-parietal bone and right zygomatic arch, fluid level at right maxillary sinus;

10) resolving intercranial haemorrhage and contusion; and

11) hyponatremia.

12.  Of course, the ninth item, the fracture of the left parietal bone, indicates a fracture of the skull.

13.  The victim, PW1, continued to feel dizziness after discharge from hospital and was seen on a number of occasions subsequently.  He also had suffered from reported loss of hearing.

14.  The summary of the reports in the agreed facts, which is correct, is that the first prosecution witness, fortunately, has not suffered any permanent injury from the attack, although he has suffered obviously from the effects of the attack for a number of months.

15.  Those facts were agreed by the defendant and support the conviction for this offence.

16.  I turn now to the defendant’s reported antecedents.

17.  The defendant has a number of previous criminal convictions related to motoring matters; no previous convictions for offences of violence.

18.  The defendant is aged 34.  He has a secondary education and was a garage-worker at the time of his arrest.  The defendant is a divorced man, living with his mother.

19.  A number of matters were put forward in mitigation for the defendant, including his own medical condition. 

20.  I have obtained reports - a psychologist’s report and psychiatric report - on the defendant. 

21.  The conclusion of the psychiatric report was that in January of 2014 the defendant was suffering from a generalised anxiety disorder and had adjustment problems as a result of the offence.  At present, his mental condition is stable with medication.  He expressed remorse towards his offence. No inpatient management is warranted at this time.

22.  I also obtained a psychologist’s report.  The conclusion of that report is that this offence is Mr Lee’s first offence of violence.  The offence was described as an impulsive reaction to the victim’s provocation and ventilation of pent-up hostility towards the victim.  It says the defendant is not a violent person in general and the indexed offence can be regarded as an isolated incident.  The risk of violent reoffending is low.  The defendant would benefit from counselling or stress and anger management.

23.  In earlier mitigation, the defendant had himself already obtained a psychiatric report from Dr Cheng Fan-kwong(?). 

24.  Dr Cheng’s conclusions were, in fact, similar to those conclusions reached by the report that I obtained.  Dr Cheng was able to consider an earlier period than the doctor from the Correctional Services Department and he was of the opinion that the defendant had been suffering from a general anxiety disorder since early May 2013, precipitated by the defendant’s conflict with his wife and also the failure of one of his clients to pay a bill.

25.  Dr Cheng describes in paragraph 22, he says,

“Due to sudden provocation, the defendant was in an heat of uncontrollable anger which resulted in the tragedy.”

26.  Dr Cheng reported that inpatient psychiatric treatment would not be necessary.

27.  There was also a background report obtained on the defendant, which went through the personal background of the defendant. The conclusion from that report was that the indexed offence reflected the defendant’s impulsiveness, inability to control his temper and lack of consequential thinking, and the defendant had suffered from low mood, marital brokenness and financial loss.  The defendant expressed regret for his abrupt impulsiveness. 

28.  It can be seen also from the report that the defendant had a good working history as a garage worker, was a family man until the breakdown of his marriage and is the father of a 13-year-old daughter.

29.  The defendant had described his poor relationship with the victim, expressed that he easily had been provoked by the victim’s foul and offensive languages, and that the victim had intentionally blocked the pathway for the vehicle to leave.  He attributed the attack to his low mood.

30.  As far as the offence is concerned, it is, of course, a serious offence, because the offence involves the element of an intent to do grievous bodily harm to the victim.

31.  In the case of Secretary for Justice v Yu Yat Sang, reference is made to the case of HKSAR v Hau Ping Chuen, which indicated the usual range for a Section 17 offence is between one of 3 to 12 years’ imprisonment.  This, of course, is a wide range reflecting the fact that the circumstances in which such offences are committed are infinitely varied.

32.  In mitigation, the personal circumstances of the defendant are referred to, namely, the fact that he was suffering from general anxiety disorder at the time of the offence.

33.  The offence, of course, is acknowledged to be serious, but it is said the offence did not involve any great planning, was as a result of a momentary loss of temper.  The weapon of choice was a weapon of opportunity, in that it appeared to be a wooden block that was lying around in the garage area.  The victim himself did not suffer any permanent injury.

34.  In terms of the other factors which may be considered in relation to the offence, is that an attack involving a weapon of any kind to the head of a victim is a serious matter.  The fact there is no serious long-term injury is fortunate, but matters could have turned out very differently, and, in any event, the attack by the defendant on the victim led to a fracture of the victim’s skull.

35.  I need to indicate a starting point for sentence before any aggravating or mitigating factors can be taken into account.

36.  I consider an appropriate starting point for sentence for an attack of this nature is one of 4 years’ imprisonment.

37.  There are no further aggravating factors to be considered.

38.  As far as mitigating factors are to be considered, there is the question of the defendant’s mental condition at the time.  Clearly, this is established in evidence.

39.  I consider that would reduce the starting point for sentence by 6 months.

40.  Reference is made in the papers and at times in mitigation to provocation.  It would appear that the victim and the defendant had a poor relationship arising out of the difficulties for operating the kind of businesses that they did at that location and hard words may have been spoken. 

41.  Nevertheless, the incident where the defendant took the block to the victim’s head occurred sometime after any grievance could have arisen and in my view cannot constitute a further mitigating factor and I consider that, as I said, before discount for a plea of guilty, after the reduction of 6 months from the starting point of 4 years, I have a head sentence of 3 years 6 months’ imprisonment.

42.  There will be a further one-third discount from that.  That will be for the defendant’s plea of guilty.

43.  That is a further 14 months’ discount.

44.  This leads to a sentence of 28 months’ or 2 years and 4 months imprisonment and that is the sentence of the court.