HKSAR v. ALVARADO PERDOMO EDWARD ALEXANDER

DCCC 1181/2016

[2018] HKDC 840

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1181 OF 2016

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REASONS FOR SENTENCE

1.  The defendant stands convicted after trial of one charge of wounding Franco Paul Jaboneta with intent to do him grievous bodily harm, contrary to section 17(a) of the Offences against the Person Ordinance[1].

2.  Full particulars of the offence are set out in my verdict delivered on 16 April 2018.  In summary the defendant and Mr Franco had known each other since 2012 through the introduction of the defendant’s wife Sherry Faller Alvarado, who Mr Franco first met in Shanghai around 2004/2005.

3.  On 16 April 2016 Mr Franco, together with the defendant and his wife, attended the 50th birthday party of Nigel Smith, which was held at the Isobar on the fourth floor of the International Finance Centre mall.  Prior to going to the party Mr Franco first went to the home of the defendant for a drink.

4.  When Mr Franco left the party at about midnight he met the defendant walking up the staircase between the third and fourth floors.  Out of the blue the defendant said Mr Franco was a piece of shit and that the next time he went to his apartment he would beat the shit out of him.  Mr Franco asked the defendant what was wrong with him.  The defendant continued to abuse Mr Franco calling him a stupid Filipino faggot. 

5.  As Mr Franco tried to walk down the stairs the defendant pulled Mr Franco’s shirt and held onto Mr Franco with one hand while holding a beer bottle in the other hand.  When the defendant tried to hit Mr Franco with the bottle, Mr Franco used his left hand to hold the defendant’s arm at which point Mr Franco saw the defendant lean on him and bite his ear. 

6.  The defendant then spat something on the ground.  Mr Franco saw a piece of flesh on the ground, which the defendant picked up before running upstairs.  Mr Franco on seeing part of his ear had been bitten off was scared and in a state of shock.  Mr Franco went back upstairs to let people know what had happened to him. 

7.  The police were called and Mr Franco was taken to the Queen Mary Hospital.  Mr Franco sustained an extensive open, ragged wound with approximately one third of the top part of his ear missing.  Later Mr Franco went to the Matilda Hospital where he underwent surgery to reconstruct his ear which was sewn to the side of his head.  Photographs of Mr Franco’s ear showing the wound were admitted in evidence[2].

8.  The defendant was arrested at his home in the early hours of that morning. 

Mitigation

9.  Mrs Panesar initially mitigated after the defendant was convicted on 16 April 2018.  Sentence was adjourned to 8 May 2018 for a psychological report.  On 8 May 2018 Mrs Panesar applied for an adjournment to obtain medical reports from Queen Mary Hospital.  Sentence was further adjourned to 25 May 2018.  After hearing full mitigation on that day delivery of sentence was adjourned to today, a date convenient to Mrs Panesar. 

10.  In passing sentence, I take into account everything said on behalf of the defendant by Mrs Panesar together with the character references, medical reports, magazine articles and charitable donations submitted by the defence[3].  I take into account the defendant has a clear record and worked hard to build a business as a diamond merchant specialising in coloured diamonds.    

11.  I have read forty-three letters, including letters from the defendant’s ex-wife Sherry Faller, the defendant’s brother; business acquaintances and friends from all different walks of life and from around the world[4]. All the letters speak very highly of the defendant and state what happened was completely out of character.  Many of the defendant’s friends together with his ex-wife and current girlfriend have been present in court during the sentencing process showing their support for the defendant. 

12.  Some of the letters refer to the defendant being sorry for what he has done while other letters express the view that they believe the defendant is sorry for what happened.   In mitigation Mrs Panesar says that the defendant regrets not pleading guilty.  The defendant has, since his remand in custody, written a letter apologising to Mr Franco[5]. The defendant asks that the letter be sent to Mr Franco. 

13.  Mrs Panesar informs the court that on asking the defendant about his relationship with Mr Franco, the defendant said that they were friends and that like all friends they sometimes fell out but always patched things up.  The defendant told Mrs Panesar that there was no reason for him to do what he did to Mr Franco.  The defendant has submitted to court a letter detailing the financial help he has given to Mr Franco[6].

14.  Mrs Panesar says that the defendant has been seriously affected by the whole incident and that he has lost his business.  The defendant has submitted to court a letter detailing his financial position as at May 2018[7]. 

Psychological report prepared by Nicola Y. L. Chung, Clinical Psychologist

15.  When Mrs Panesar first mitigated she informed the court that prior to the commission of the offence the defendant had been diagnosed in October 2015 as suffering from a severe form of depression for which he had received treatment.  I therefore called for a psychological report to know more about the defendant. 

16.  In summary the report reveals an unhappy childhood; outstanding academic performance; marital difficulties leading to two divorces and the decline in the defendant’s diamond business in 2015 resulting in depression and three attempts of suicide for which the defendant sought psychological treatment[8].    

17.  Mrs Panesar has provided the court with further details of the defendant’s upbringing, including how his step father abused him and his brotherand how he looked after his brother during civil unrest in Venezuela.  The brother has written a letter to the court detailing how the defendant has supported him throughout his life[9].   Mrs Panesar has also detailed that from a very young age the defendant began to work first as an investment broker and then as a diamond merchant.  

18.  The clinical psychologist is of the opinion that the defendant may be prone to violence especially when under the influence of psychotropic substance; that the risk of violent reoffending was assessed to be moderate and that psychological treatment is recommended targeting the defendant’s depression, mood management, violent tendency and prevention of future reoffending. 

19.  Mrs Panesar submits that the defendant having realised his problems and sought treatment both before and after the commission of the offence, it is very unlikely that the offence would ever be repeated, a view also taken by many of the defendant’s friends[10].

20.  Prior to the commission of the offence in October 2015 the defendant consulted Dr Domador in Spain.  Dr Domador prescribed antidepressant and anxiolytic treatment[11]. This is discussed later when considering whether the medication prescribed by Dr Domador played a part in the commission of the offence. 

21.  Medical reports from Dr Chao[12]; Queen Mary Hospital[13] and Dr Garcia[14] have been submitted by the defence detailing treatment received by the defendant after the commission of the offence and the progress the defendant has made in recovering from depression.

Dr Chao

22.  On 22 April 2016 the defendant consulted Dr Puihan Joyce Chao, a Clinical Psychologist with Dimensions Centre.  The defence submit to court the report of Dr Chao dated 30 April 2018[15]. The report reveals that the defendant was referred to Dr Chao by Haldanes, solicitors, who were representing the defendant at that time[16].

23.  Dr Chao saw the defendant on four occasions between 22 April  and 23 May 2016[17].  The defendant told Dr Chao that he was shocked by his behaviour and reported symptoms of tension and irritability; distrust and disappointment of others and feeling lonely and hopeless[18]. The defendant detailed his marital problems and said that he needed to manage his stress more effectively[19].

24.  Dr Chao was of the opinion that the defendant suffered from distress closely associated with a mixed anxiety and depressive mood state, symptoms of which had been troubling the defendant for quite some time before the commission of the offence[20].

25.  Dr Chao states that the defendant showed interest in learning about the causes of, and the treatments for, his condition[21] and showed genuine motivation to address his issues and challenges[22].  The defendant reported experiencing some good progress in managing his stress and dealing with some of the conflicts with his wife after the initial treatment session[23].

Queen Mary Hospital

26.  The report of Dr Au, a psychiatrist at the Queen Mary Hospital, states that the defendant was first seen on 8 November 2016 when he was diagnosed with panic disorder.  With treatment the defendant’s condition improved and at the time of his last attendance at the Western Psychiatric Centre on 18 October 2017, the defendant’s mood was said to be stable[24].

27.  The report of Dr Brenda Lam, a clinical psychologist at the Queen Mary Hospital, states that the defendant was seen once on 23 December 2016 when he was noted to be stressed and anxious.  Follow-up was arranged for discussion of treatment goal, however the defendant requested to defer his follow-up appointments.  The defendant never attended follow-up appointments and therefore psychological service was terminated in June 2017[25].

Dr Garcia

28.  Dr Garcia first saw the defendant in Spain on 21 November 2016 and noted that prior to receiving treatment from a psychiatrist in Hong Kong the defendant had displayed impulsive aggressive behaviour, depersonalisation sensation, forgetfulness, suicidal thoughts, panic attacks and frequent uncontrolled shaking. 

29.  Dr Garcia initiated in-person cognitive-behavioural therapy with modification of cognitive distortion, which treatment has continued online on Skype after the defendant returned to Hong Kong.  At the time of the trial the treatment was continuing, with the last of forty-three sessions having been held on 9 April this year.   

30.  Dr Garcia is of the opinion the defendant’s evolution has been positive and that he has gained greater stability of spirits and significant changes in the management of his work and spousal conflicts, as well as his sociability, responsibility with a return of his interest in life.  Dr Garcia recommends that the defendant continues to receive therapy in order to reinforce his achievements and complete the programme he has started[26].  

Diamond Way Buddhism Hong Kong Limited

31.  The defendant has also sought solace in the teachings of Buddhism at the Diamond Way Buddhism Hong Kong Limited.  Anthony Hopson, a director of Diamond Way, informs the court that the defendant first attended meditation classes in 2015 for a few months.  After a period when the defendant stopped going to the classes he resumed again in 2016 and is now regarded as a regular, important and valued member[27].

32.  Lama Ole Nydhal, the founder of the Diamond Way Buddhist Centre, regards the defendant as having positively changed his life through his meditation practice[28].  This change in the defendant is also reflected in the letters from other members of the Buddhist Centre, including the defendant’s present girlfriend Aya Kazama, who describes the defendant as slowly, yet steadily, recovering from his depression[29].   The defendant plans to marry his girlfriend and start a family and also wishes to look after his mother who has had surgery for brain cancer. 

Guidelines

33.  I accept that the defendant’s actions in biting Mr Franco’s ear was completely out of character and that the defendant is unlikely to repeat the offence.  One letter asks for the defendant to be given the most lenient punishment with a warning, while others ask for a non-custodial sentence.  Mrs Panesar realistically accepts that a custodial sentence of years is appropriate.

34.  There are no guidelines for offences of wounding with intent.  In HKSAR v Hau Ping Chuen the Court of Appeal referred to the usual range of sentence for wounding with intent being described as 3-12 years[30].  The Court of Appeal noting that there were a host of wounding with intent decisions which might be used in favour of a lenient view whereas others favour a stricter view said that:

“At the end of the day, a sentencing court obtains a ‘feel’ for the appropriate result by regard to the attitude of courts over a period of time to a great variety of circumstances.”

35.  In HKSAR v Chan Chun Tat the court listed a number of relevant factors to be considered in determining the gravity of the offence and the culpability of the offender, including the extent to which the assault was premeditated; the reasons or motivation underlying the assault upon the victim; the mental or emotional state of the assailant at the time of the assault; whether alcohol or drugs contributed to the actions of the assailant; whether the assault was committed by the assailant alone or as part of a group; the type of weapons employed; the level of force or aggression and the persistence with which the assault was pressed home; the injuries caused to the victim and the effect of the assault upon the victim and those close to him or her[31].

36.  In the United Kingdom wounding offences involving biting of the ear attract substantial terms of imprisonment, the use of teeth being regarded as the equivalent of using a weapon[32]. The sentencing guidelines in the United Kingdom do not apply to Hong Kong.  I refer to the sentencing practice in the United Kingdom, not as authority on which to follow but to show that wounding offences involving biting of the ear are treated very seriously. 

37.  Mrs Panesar has referred the court to five reasons for sentence in wounding cases heard in the District Court[33]. I have considered these cases.  Although one of the cases involved biting of the thumb[34] and one case involved an ambulance man being bitten on his shoulder and a policeman being bitten on his forearm[35], the facts and circumstances of those cases are very different.  Furthermore, the charge was common assault for biting the thumb and assault occasioning actual bodily harm for biting the ambulance man and the policeman.

38.  Mrs Panesar also referred the court to the Reasons for Sentence in DCCC 905/2015, which had been referred to Mrs Panesar by the prosecution[36].  Mrs Panesar submitted that the case was on all fours with the present case.  That case involved a dispute at work, in the course of which the defendant bit the ear of a colleague.  Part of the ear was bitten off resulting in the hearing of the victim being affected.  HH Judge Yiu adopted a starting point of 2 years’ imprisonment. 

39.  In my view the sentence appears to be lenient, in particular considering that the hearing of the victim was affected and that there were permanent injuries, as particularised in paragraph 5 of the Reasons for Sentence.    

40.  Mrs Panesar also refers the court to Attorney General’s Reference No. 29 of 2001 (Katrina Styring) where the Court of Appeal said that the lowest appropriate sentence after trial for biting off the tip of the nose during a scuffle which arose from a dispute about work, was 2 years and 6 months imprisonment[37].

41.  Relying on these two cases Mrs Panesar submits that a starting point of 2 years to 2½ years is appropriate.  I note in Attorney General’s Reference No. 29 of 2001 the Court of Appeal stated that the trial judge, in saying the usual sentence in this sort of situation is 3 years, seemed to have started with an appropriate level of sentence in mind as a starting point[38].

42.  Each case is to be decided on its own facts and circumstances.  Unlike the two cases relied upon by Mrs Panesar, the biting of Mr Franco’s ear was not in the course of an argument or dispute. The biting of Mr Franco’s ear was a malicious act preceded by highly abusive language about Mr Franco’s sexuality and not as a result of provocation, as some of the letters state must have been the case. 

Victim impact statement

43.  In evidence Mr Franco said that his ear had healed completely and that his hearing had not been affected but he still needed to undergo another operation to separate the ear from the side of his head. 

44.  Mr Raffell has submitted to court a victim impact statement dated 1 May 2018 sent by email by Mr Franco from Singapore where he now lives[39]. Apart from the obvious disfigurement Mr Franco recounts constant nightmares after the attack; two years later he still has nightmares from time to time; he has developed anxiety in letting people come close to him and has tried to avoid crowded places and being in close proximity to strangers; and that the emotional trauma has made him a completely different person. 

Sentence

45.  Taking into account the circumstances of the attack; that part of Mr Franco’s ear was bitten off resulting in reconstructive surgery; the emotional trauma suffered by Mr Franco; the offence was not premeditated and that the defendant, who has a clear record, acted entirely out of character, I am satisfied that the proper sentence after trial is 3 years’ imprisonment. 

Depression

46.  As noted earlier the defendant consulted Dr Domador in October 2015 when Dr Domador prescribed Trankimazin (Alprazolam) and Seroxat (Paroxetine) (antidepressant and anxiolytic treatment)[40].

47.  Mrs Panesar submits that the defendant was affected by the medication prescribed for his depression and that the offence would probably not have been committed if the defendant had not been taking the medication.    

48.  This submission was contrary to the initial mitigation made after conviction.  On that occasion, when telling the court about the defendant having been diagnosed with severe depression in 2015, Mrs Panesar said that as a result of taking the medication the defendant was basically like a zombie and could not function properly and therefore stopped taking the medication.  Mrs Panesar further specifically stated that as of April 2016 the defendant was not taking the medication.   

49.  On referring Mrs Panesar to what she had earlier said to the court, Mrs Panesar explained that during the adjournment she had seen the defendant and clarified with him whether he was taking medication at the time.  The defendant told Mrs Panesar at the time he was taking Alprazolam to help him sleep.  The defendant immediately in court told Mrs Panesar that he was taking all the medication at the time and only stopped in May 2016.

50.  Mrs Panesar said that when taking initial instructions after conviction she may have misunderstood what the defendant said to her.  Although Mrs Panesar’s instructions appeared clear, I am prepared to accept that at the time the defendant was taking the medication prescribed by Dr Domador.  

51.  This appears consistent with Dr Domador’s report that she increased the dosage in March 2016 and that after the defendant told her on 19 April 2016 that he suffered from forgetfulness, confusion, impulsive behaviour, irritability and depersonalisation crises she prescribed a reduction of the medication and recommended that the defendant seek urgent medical treatment.  As seen earlier, three days later, on 22 April 2016, the defendant consulted Dr Puihan Joyce Chao, a Clinical Psychologist with Dimensions Centre.  

52.  In HKSAR v Chiu Peng, Richard[41] the Court of Appeal accepted that a court may properly allow a discount in sentence where a defendant is suffering from mental illness which played a part in the commission of the offence.  The court said the justification for a discount in sentence by reason of mental illness was:

“…as a reflection of diminished criminality or culpability on the part of the accused who has committed a crime under an abnormal state of mind. He knew that it was wrong to commit the crime, but he did not appreciate that the commission was as serious as it was: the degree of culpability was thus lessened.”

53.  Dr Domador has provided literature about the medication Trankimazin (Alprazolam) and Seroxat (Paroxetine) which she prescribed to the defendant[42].  From this literature it can be seen that side effects/symptoms of aggressive and violent behaviour have been reported in some patients[43]. Dr Domador states that she did not expect that her prescription of the medication might show the state of aggressiveness and impulsive behaviour and deeply regrets the harm caused by the side effects of the medication[44].

54.  Some of the literature also states that alcohol should be avoided[45]. Mrs Panesar says the defendant was told not to take alcohol.  The defendant acknowledged to Dr Chao that he had probably drunk more than he should and that his aggressive behaviour was inappropriate, no matter how upset he was[46].  In denying the offence the defendant also told the clinical psychologist Nicola Y.L. Chung that he had no recollection of committing the offence having taken antidepressants and drunk alcohol that evening[47].

55.  In describing the incident to Dr Chao the defendant said that when he learnt that one particular friend of his wife (Mr Franco) would also be attending the party, he told his wife that he preferred that she would avoid interacting with him.  The defendant described Mr Franco as someone who was manipulative; disregarded social boundaries and stirred up conflicts in his marriage.  The defendant believed Mr Franco was not a good influence to his wife[48]. 

56.  The defendant also told Dr Chao that at the party Mr Franco stirred up trouble whereby he felt his wife and Mr Franco were ganging up on him and that when he met Mr Franco on the staircase they started yelling at each other.  The next thing he remembered was that he had bitten off Mr Franco’s ear[49].   

57.  Notwithstanding Mrs Panesar said the defendant and Mr Franco were friends and that the defendant had on several occasions given financial help to Mr Franco[50], it is quite clear from what the defendant told Dr Chao, shortly after the offence, that he disliked Mr Franco. 

58.  The defendant also expressed his dislike of Mr Franco to the clinical psychologist Nicola Y.L. Chung during his remand in custody, some two years later.  The defendant told the clinical psychologist that he disliked the victim (Mr Franco) because the victim was manipulative and often took financial advantage of him[51].   This dislike of Mr Franco is also seen in the verbal abuse of Mr Franco that preceded the biting of his ear.

59.  The taking of antidepressants coupled with too much alcohol and an inner dislike of Mr Franco may therefore begin to explain why the defendant bit Mr Franco’s ear.

60.  Taking into account that Dr Domador did not expect that her prescription of the medication might show the state of aggressiveness and impulsive behaviour and the opinion of the clinical psychologist Nicola Y.L. Chung that the defendant may be prone to violence especially when under the influence of psychotropic substance, I am prepared to accept that the taking of antidepressants may have played a part in the commission of the crime and reduce the sentence by 6 months to 2 years and 6 months’ imprisonment.       

Positive good character

61.  I accept by reason of the many donations and charitable work in Hong Kong, China, the Philippines and Venezuela as particularised in the defence bundle “Charitable Donations made by Defendant” together with the letters from Alex Nazari (letter 35) and Domingo Antonio Hernandez Lares (letter 36) the defendant is to be regarded as having positive good character.  I therefore further reduce the sentence by 2 months to 2 years and 4 months’ imprisonment.

Delay

62.  Where there has been unreasonable delay in bringing an offender to justice this is a mitigating factor which may be taken into account in sentence.  All the circumstances must be looked at including whether the offender has acknowledged guilt; where the delay has given the offender the opportunity to rehabilitate himself; whether restitution has been made; whether there was a legitimate expectation the matter will not be further pursued; the size of the investigation and whether the time taken to bring the case to court was longer than necessary[52].

63.  The defendant first appeared in court in December 2016 when the case was transferred to the District Court.  In January 2017 trial dates were fixed for May 2017 however the trial was adjourned so the defendant could apply for legal aid with new trial dates fixed for October 2017.  The trial proceeded in October and for the reasons set out in my verdict there were a number of adjournments during the trial.  I delivered verdict on 16 April this year exactly two years after the commission of the offence.

64.  Although the adjournment of the trial in May last year was attributable to the defendant, the fact remains the matter has been hanging over the defendant for over two years, during which time his depression has fluctuated though fortunately he slowly, but steadily is recovering from his depression.  In the circumstances I further reduce the sentence by 1 month to 2 years and 3 months’ imprisonment[53].

65.  The defendant is convicted and sentenced to 2 years and 3 months’ imprisonment.