HKSAR v. CHAN MEI LIN

DCCC191/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 191 OF 2011

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Reasons for Sentence

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1.  The defendant appeared before me and pleaded guilty to a single charge of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap.212.

2.  The particulars of offence allege that the defendant on the 12th day of September 2010, at the sitting-out area outside the market, Long Ping Shopping, Long Ping Estate, Yuen Long, New Territories, in Hong Kong, unlawfully and maliciously wounded Yu Mei-ho with intent to do her grievous bodily harm.

The facts

3.  According to the amended Summary of Facts which was admitted by the defendant, the defendant and the victim had known each other for less than half a year before the defendant was arrested for the present offence.  They were “Kai Fongs” or residing around the Long Ping Estate, Yuen Long.  They met frequently at the podium of the Long Ping Estate Shopping Centre.

4.  In early August 2010, the victim borrowed money from the defendant but the victim failed to repay to the defendant despite repeated demands for repayment for two to three times.

5.  On the date of the offence, at about 1.30 pm, when PW1 was sitting alone at the sitting-out area outside the market of the Long Ping Shopping Centre, the defendant appeared and demanded repayment again from the victim.  The victim told the defendant that she could not repay for the time being.  As a result, the defendant was angry and scolded the victim. The victim also scolded back.  There appeared to be an exchange of words and the argument lasted for about 3 minutes before the defendant left the victim.

6.  At about 2 minutes later, the defendant reappeared again in the sitting-out area.  This time with a two feet long metal ladle (“P1”).  She then used this exhibit to hit PW1’s forehead for two times and as  a result the victim felt very painful and told the defendant that she was going to repay the money and asked her not to hit her any more.  The defendant, however, ignored the victim’s plea and continued to use the exhibit to hit the victim and the victim used her arms to protect against it.  As a result, the victim’s left arm was also injured.  After the attack, the defendant rushed home and the matter was reported to the police. 

7.  On the same day at about 2.35 pm, the defendant was intercepted by a police officer and she was arrested and cautioned.  Under caution, the defendant said, “It is because she borrowed money from me, but she failed to pay me back, therefore I went into this “Pang Kei Siu Mei” (which I understand is a barbecue shop) and took a wok spatula and then hit her head for several times.”  According to the facts, this barbecue meat shop was about 30 feet away from the place where the attack took place.

8.  The exhibit was seized near the vicinity and then the victim was sent to Pok Oi Hospital for treatment.  She positively identified the exhibit as the instrument which the defendant used to hit her.   

The injuries

9.  The victim, as said, was sent to Pok Oi Hospital for treatment on the day in question and was discharged on the same day.  She was later referred to the Department of Ophthalmology on 13 September 2010.  She was found suffering from the following injuries:   

1. 0.5 cm laceration over right upper eyelid;

2. 5 mm laceration at right lower eyelid with bruising and swelling at both upper and lower right eyelids;

3. 1 cm laceration at left scalp;

4. 1.5 cm haematoma and bruising at left lateral corner;

5. 1 cm laceration on top of a 1.5 cm haematoma at left forearm lateral aspect with multiple abrasion over left upper limb.

10.  More significantly, the victim received further treatment from the Department of Ophthalmology on 13 September 2010.  She was found to have traumatic posterior dislocation of the lens of the right eye. She underwent as a result an operation on her right eye on 21 September 2010. Her right eye’s visual acuity was assessed by the doctor on 5 January 2011. According to the doctor’s assessment, as a result of the injuries, she had suffered a 10 per cent visual impairment of the right eye, which has been described by the doctor as a permanent visual impairment, and the cause of injury is attributed to the injury on 13 September 2010.

The background of the defendant

11.  The defendant has a clear record.  She has two daughters and a son and is now 59 years of age.  Ms Cheng, counsel for the defendant, had on the last occasion submitted to the court a psychiatric report written by Dr Bonny Siu. According to the diagnosis, the defendant was suffering from borderline personality disorder but she is fit to plea. In light of the preliminary mitigation advanced on her behalf and also the presence of this medical report, I adjourned the  sentence for two weeks for the purpose of obtaining two updated psychiatric reports by two registered psychiatrists of the Siu Lam Psychiatric Centre to see whether in the circumstances a Hospital Order is a suitable sentencing option.

12.  In the last occasion, I was also asked to see a number of letters.  Those letters were written by the three daughters of the defendant and also some of the friends of the defendant who were living in the same neighbourhood and knowing the defendant for years.  From these letters and also from the mitigation by Ms Cheng, I was given to understand the defendant had a rather miserable background.  Her natural mother had left her when she was only a few years of age and then thereafter she was raised up by not one but several stepmothers.  Also there was reference that she was sexually abused by the father when she was young.     

13.  When her father passed away, the defendant did not receive much education and had to work in order to support the livelihood. She met her first husband and they have four children together but the first husband was a gambler and they were soon divorced after a few years when the defendant was 25.

14.  A few years later, she married her second husband.   Unfortunately for her, her second husband’s business was closed down because of a fire.  Her second husband later passed away in 2003.           

15.  The contents of those reports largely confirmed the mitigation.  There is also the mention about the alcoholic abuse problem by the defendant.  It stated that on the day in question she had drank six cans of beers before she attacked the victim.     

Sentencing considerations

16.  Wounding with intent is of course a very serious offence.  There is no sentencing guideline with this sort of offence.  The maximum punishment for this offence is life imprisonment.  According to the case authority, it has been said that the range of sentences would normally be between 3 to 12 years.

17.  As the two psychiatrists reported, the defendant had problems in personality and alcohol consumption. She is diagnosed with borderline personality disorder.  She is however currently mentally stable and no in-patient psychiatric treatment is necessary at this time.  Both psychiatrists recommend the defendant to continue with outpatient psychiatric treatment.  It has been said that she is mentally fit to serve any ordinary sentence as deemed appropriate by this court.    

18.  This afternoon, I have referred to both prosecution and the defence a case of HKSAR v Yeung Kam Kwai, [2008] 5 HKLRD.  In that case, the appellant pleaded guilty to wounding with intent, the same offence with which the defendant was being charged.  The appellant was 10 years older, about age 69 at the time of the offence, and like the defendant in this case, they both have a clear record.      

19.  The appellant Yeung in that case was suffering from epileptic fits several times a month and rendering him unconscious and for which he was on medication.  He lived in an elderly home and was considered as placid. The victim in Yeung’s case was a 70 year old fellow resident who was, according to the facts, very quarrelsome and had once threatened a staff member with a knife.     

20.  On the day before the day of the offence, the victim laughed and teased Mr Yeung who had suffered a few epileptic fits that day.  Mr Yeung told the victim not to do it, to stop, but to no avail so Mr Yeung decided overnight to teach the victim a lesson.  The next morning, Mr Yeung went to the victim’s room and stabbed him in the back with three knives.  The victim as a result was hospitalised.

21.  The medical report on the victim noted eight wounds altogether with the deepest being 2.5 cm long on his chest and left shoulder.  In sentencing, the judge referred to the case of R v Nottingham Crown Court ex parte. DPP (1996) 1 Cr App R (S) 283, which held that the consequence to the victim should be taken into account when considering the gravity of the offence and the appropriate sentence.  The District Judge adopted in that case a starting point of 33 months, reduced it by one-third for the plea and sentenced Mr Yeung to 22 months’ imprisonment.

22.  On appeal, the prosecution conceded that this was a very exceptional case and the sentence imposed was too severe and manifestly excessive. The Court of Appeal was of the view that although the injuries to the victim were serious but they were not so serious as to require such a high starting point. The Court of Appeal held that the wounds were largely skin wounds and not serious wounds as found by the trial judge.

23.  By concentrating on the consequence to the victim, the Court of Appeal said that the trial judge had failed to consider other mitigating circumstances, namely that:

1. the attack was as a result of provocation by the defendant;
2. this was an isolated out of character act resulting from defendant’s loss of temper;
3. the defendant had suffered from epilepsy and required medication to suppress the illness, which might indicate a greater susceptibility to stress than non- epileptics; and
4. that is the defendant’s previous good character.

24.  The Court of Appeal finally concluded that a section 78 offence was an excepted offence and did not qualify for a suspended sentence.  Further, a Probation Order or Community Service Order might not be appropriate given the defendant’s age and isolated nature of the offence.    

25.  By the time when the appeal was heard, the appellant, Mr Yeung, had already served a sentence of over 9½ months’ imprisonment.  In the circumstances, the Court of Appeal had imposed a sentence such as would enable Mr Yeung’s immediate release. 

26.  I found that the circumstances of the defendant in our case in many way is very much similar to the circumstances of Mr Yeung in the case that I have mentioned.  Clearly in this case, the victim had over the past months failed to repay the money as promised and when she was demanded repayment, she refused and as a result she also argued with the defendant.  According to the mitigation and also to the psychiatric report, the defendant clearly told the psychiatrists that at the time the victim not only refused to repay but also threatened to find somebody to hit her on the street.

27.  Secondly, the defendant was, like Mr Yeung, also a person of a clear record.  Her mitigation letters shows that she was considered by all the people from the neighbourhood that she was a kind woman and was willing to help, and in fact the victim was helped by the defendant. Again, in her case, like Mr Yeung, this appeared to be an isolated and out of character act.

28.  Thirdly, the defendant was diagnosed with borderline personality disorder, and she had mood and anxiety symptoms before her drug treatment.  She had also a history of excessive alcohol use which all went to show that at the time of the offence she felt distressed or anxious as a result of her illness.  Taking all these matters in the round, I come to the conclusion that this is another case where it is rather exceptional, which takes this case out of the ordinary range of the sentence. 

29.  However, I must say I have no sympathy for defendant’s excessive alcohol use, when there was information that she had drank six cans of beer around the time of the indexed offence.  I do not find that she could rely on her drinking frolic as an excuse of committing the present offence.  Her voluntary consumption of this kind of alcohol would only have the effect of exacerbating her illness, her anxiety and her distress and gave rise to the present offence.  

30.  On the other hand, the consequence to the victim cannot be overlooked.  Unlike the case of Yeung Kam Kwai (supra.), where the victim only suffered some superficial skin wounds, here the victim suffered a permanent 10 per cent loss of eyesight.  As a result it makes the present case more serious. 

31.  In the end, although it is a rather unusual case, I considered that a starting point of at least 24 months is appropriate. After giving the defendant the usual one-third discount because of her plea, I will sentence the defendant to a

sentence of one of 16 months’ imprisonment.