HKSAR v. NANGOBI SOPHIE

DCCC 151/2019

[2020] HKDC 31

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 151 OF 2019

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REASONS FOR SENTENCE

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1.  The defendant is convicted on her own plea and agreement to the Summary of Facts to a charge of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212.

Facts

2.  The 22-year-old defendant and the 35-year-old victim both came from Uganda and they are both Form 8 holders here in Hong Kong.  They have known each other since 2017.

3.  On 17 October 2018, they met each other outside Shop 105, Ground Floor, Block B, Chungking Mansion, Tsim Sha Tsui, Kowloon (“the Shop”).

4.  A verbal dispute over money matters took place between them and during the heat of their dispute, the defendant suddenly dashed off to a food shop nearby and grabbed a knife measuring approximately 10 cm in length seemingly for attacking the victim (PW1).  Other people present forthwith subdued the defendant and took the knife from her.

5.  The defendant then picked up a beer bottle from nearby and threw the same at the victim, and fortunately the same missed the victim.  CCTV captured the defendant then picked up a plastic soft drink bottle and hit the victim on her head a couple of times with it.

6.  Afterwards, the defendant picked up an object from the ground which appears to be a broken glass fragment and attacked the victim with the same, as a result of which the victim sustained injury, collapsed on the ground but she managed to make a call to the police before she fell unconscious.

7.  The victim was immediately rushed to Queen Elizabeth Hospital for medical treatment and she was admitted to the Intensive Care Unit of the hospital for three days.  She was found to have sustained injuries:

(1) one cut wound on her left neck measuring approximately 20 cm in length;

(2) one cut wound on her left chest measuring approximately

5 cm in length.

8.  She received, as a result, multiple metal stitches for these wounds and she was discharged on 22 October 2018 from the hospital.  She was still required to take follow-up medical treatment afterwards.

9. After the incident, the defendant remained at the scene and was arrested subsequently by police who arrived shortly afterwards. She was also admitted to Queen Elizabeth Hospital owing to the unstableness of her emotional state.

Criminal record

10. The defendant has a clear record in Hong Kong.

Mitigation

11. The defendant is single and is 23 years old. She attended high school in Uganda and her family remained in Uganda.

12. She came to Hong Kong in the year 2017 as a torture claimant and has been relying on ISS for her survival.

13. She is unemployed in Hong Kong and she do have a clear record both in Hong Kong and Uganda.

14. Defence counsel submitted on behalf of the defendant that on the day in question the defendant had been drinking with friends since 2 am in the morning. She was very drunk when the offence occurred.

15. It was also submitted that the offence was committed on the spur of the moment and there was no premeditation. And it was also contended that the defendant remained at the scene until the police arrived and she made no attempt to escape or evade responsibility. She asks this court for leniency.

16. It is also submitted that the present case falls within the very lowest end of the scale in terms of seriousness of the commission of the offence.

17. Defence counsel also urged this court for the one-third sentencing discount to reflect the defendant’s timely plea and her genuine remorse. He also referred this court to several authorities, including Attorney General v Lam Yat Sing, CAAR 14/1992 and Secretary for Justice v Liu Chi Yung, CAAR 3/2006.

18. Further, defence counsel handed in a mitigation letter from Father Wotherspoon which says that the defendant is a woman of clear record, basically a good person. Father Wotherspoon says that he is willing to provide supervised accommodation to the defendant.

Discussion

19. For wounding with intent offences, there is no tariff or sentencing guideline. The actual sentence imposed obviously depends on the facts of the particular case. In the case of HKSAR v Hau Ping Chuen [2008] 4 HKLRD 673, the Court of Appeal says that the usual range of sentence for such offence lies between 3 to 12 years.

20. 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:-

(a) the extent to which the assault was premeditated;

(b) the reasons or motivation underlying the assault on the victim;

(c) the mental or emotional state of the assailant at the time of the assault;

(d) whether alcohol or drugs contributed to the action of the assailant;

(e) whether the assault was committed by the assailant alone or he is part of a group;

(f) the type of weapon employed;

(g) the level of force or aggression and the persistence with which the assault was pressed home;

(h) the injuries caused to the victim; and

(i) the effect of the assault upon the victim and those close to him or her.

21. In the present case, the victim and the defendant used to be friends. The assault took place after the parties had a dispute over money matters. This court accepts that the offence was not premeditated and that the defendant acted alone. However, the defendant in the case did attempt to use, firstly, a knife of 10 cm long to attack the victim. The same is followed by throwing a glass bottle at the victim which missed the victim and followed further by assaulting the victim with a plastic soft drink bottle on her head, lastly something that resembles fragment of a glass bottle which caused the wounds on the victim.

22. In short, the defendant was then very aggressive and very persistent in the whole wounding incident. Even though the knife was snatched from her, she still resorted to different weapons to assault the victim.

23. The injuries inflicted on the victim was illustrated in the photographs and they were appalling. The locations of the wounds on the victim clearly suggested very malicious intent on the defendant to, in the least, seriously wounding the victim. This court however noted that the defendant was then drunk and she might not have intended the wounds to land at these locations. The wounds on the victim’s neck just slightly missed the carotid artery, otherwise it could have easily killed the victim and it would have been a fatal tragedy for the victim and, in the least, a manslaughter charge for the defendant.

24. The chest wound and the neck wound are respectively 5 cm and 20 cm in length. They are both very serious wounds on their own. This explained why the victim was admitted and stayed in the Intensive Care Unit for three days.

25. No doubt these wounds would have resulted in very conspicuous scars for this 35-year-old lady victim which would have affected her social life and probably also her intimate relationships.

26. This court though accepting that the defendant committed the offence on the spur of the moment, in view however in particular to the seriousness of the injury and the effect of the injury on the victim, takes this wounding case as one of more serious type of its own.

27. The only appropriate sentence on the defendant is one of immediate custodial sentence.

28. This court has considered all mitigation done on the defendant’s behalf, including the mitigation letter and finds that the appropriate sentencing starting point in this case would be 4½ years’ imprisonment. The defendant has pleaded guilty and she is therefore entitled to a full one-third sentencing discount bringing the sentence to 3 years’ imprisonment.

29. It is submitted that the defendant was drunk at the time of the offence. However, it has been consistently held that the influence of alcohol in commission of an offence is not, in general, a valid mitigating factor and the accused cannot expect to benefit from his own self-induced intoxication[1]. The defendant must instead expect to receive the sentence that the offence merits[2] .

30. Accordingly, the defendant is sentenced to 3 years’ imprisonment in this case.