HKSAR v. Au Shuk Lam

DCCC 788/2021

[2022] HKDC 1463

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 788 OF 2021

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REASONS FOR SENTENCE

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Charges

1.  The defendant pleaded guilty to a charge of wounding with intent, contrary to s 17(a) of the Offences against the Person Ordinance, Cap 212. 

The Facts

2.  The defendant and PW1 were previously lovers and they lived together in a unit in Hopewell House, Kwun Tong. 

3.  They broke up in February, 2021. 

4.  On 11 March, 2021, the defendant returned to the flat with an excuse to collect her personal items.  She arrived at 10:30am and asked PW1 to drink the lemon tea which she had prepared for him. 

5.  PW1 took a few sips and began to fell dizzy, he also threw up in the bathroom.

6.  PW1 then took a rest on a chair as he was still feeling dizzy.  All of a sudden, PW1 felt great pain on the left side of his neck and saw the defendant was on his left side.  He pushed her away, touched his neck and found out it was bleeding.  He pressed onto the wound by using his fingers to stop the bleeding.  He also realized that the defendant was holding a fruit knife which was not from his flat.

7.  The two of them struggled, as a result of which the knife dropped onto the floor.

8.  The defendant attempted to hit herself on the computer desk in the living room, PW1 stopped her. 

9.  While PW1 reported the case to the police, the Defendant ran towards the door of the flat, PW1 found her lying on the floor facing upward.  The knife was near to the right side of the Defendant and her stomach was bleeding. 

10.  The defendant was taken to the Queen Elizabeth Hospital and arrested on the same day for “wounding with intent.”

11.  Medical finding of PW1:-

(a) 2 cm laceration on the left side of his neck;

(b) 2 cm laceration on the left index finger;

(c) 1 cm laceration on the left middle finger;

(d) CT scan revealed small gas bubbles at the left side of the neck – suggested of stabbing wound/injury.

12.  During follow-up medical consultation, PW1 complained of numbness under the left side of his jaw with mild asymmetry on the mouth.

Forensic examination

13.  The homemade lemon tea and the blood in the victim’s body were found to contain Zolpidem, a type of sleeping medicine. 

Criminal record

14.  The defendant has a clear record.

Mitigation

15.  The defendant is now 27 years old.  She was a senior nurse in a clinic at the time of the offence.  The victim and the defendant had been together for 7 years, they also lived together since 2019. 

16.  The victim had proposed to her after they moved in together, however, as the defendant’s parents wanted them to host a banquet after the registration, they then dropped the idea of marriage registration.

17.  Shortly before this incident, the victim decided to split up.  The property belonged to his parents, the defendant then moved out. 

18.  On the date of the incident, the defendant planned to kill herself after she served the victim with a drink which has been laced with sleeping medicine. She wished the victim to find her dead body lying next to him when he woke up.

19.  However, she found the victim no longer used the old wallet which she gave him as a present, he started to use a new one with a picture of a female inside it. 

20.  It was completely beyond the defendant to cope with such a situation that she used the knife to stab on the neck of the victim once.  She then harmed herself by stabbing her abdomen.  She received 49 stitches and lost one liter of blood.  She was in ICU for a period of time before recovery.

21.  Her parents and friends were shocked by this incident as it was totally out of her character.  The defence asked for probation report and psychiatric report before sentencing. 

22.  There were also altogether 11 letters from her father, relatives, long terms school friends and her former employer (the doctor).  All said good words on behalf of the defendant. 

23.  One of the letters was from the victim, the defence said that it is an indication that he had forgiven the defendant.

24.  In her own letter, the defendant said that she has learned a bitter lesson, she accepted that she had made a bad mistake. 

25.  Her parents are very supportive to her, family members, friends and former employer (the doctor) are also in Court today.

Sentence

26.  S 17(a) offence carried a maximum sentence for life.  There is no doubt that the defendant has committed a very serious offence.  There is no sentencing guideline for the offence of wounding with intent, the range of prison term is usually between 3 to 12 years. 

27.  The appropriate sentence depends on all the circumstances of each case.

28.  The defence submitted that there were a number of factors to be considered as stated in the case of HKSAR v Chan Chun Tat [2013] 6 HKC 225 at paragraph 59 of the judgement. 

29.  The relationship between the defendant and the victim was a mature and serious one, the defendant clearly viewed the victim as a husband even thought their relationship was not formalized by a marriage certificate.  One can understand that the message from the victim to split up must have hurt her deeply.  The cause of splitting up involved a third party.  As she told the psychiatrist that “she could not bear the thought of losing him.”

30.  The defence said that what triggered for her conduct in this incident was when she saw the photo in a new wallet.  She could not accept the fact that he had started a new relationship.  The defendant simply lost her control of emotion and senses.  As she told the psychiatrist, she became upset and felt being betrayed. 

31.  The defendant claimed that she brought the knife with her to kill herself, not to harm the victim. 

32.  The defence said that the incident was not planned or premediated. 

33.  What was important to note was that when the defendant stabbed on the neck of her former boyfriend, he had already taken the drink prepared by her. 

34.  The defendant was a nurse, she had access to obtain the sleeping medicine.  She knew the effect of taking that special drink which had been prepared by her.  The dosage must have been quite strong that his body reacted by vomiting and felt dizzy instead of sleeping away. 

35.  I consider that it is an aggravating factor, a very serious aggravating factor. 

36.  The defendant should have known at that point of time, he was sedated, he would not be able to defend himself or to react or to overcome the defendant as quickly as possible in the normal circumstances. 

37.  The defendant is previously a nurse; that means she has medical knowledge that there are a pair of arteries located on both side of the neck.  The stabbing on his neck can be fatal and detrimental, the consequence would be disastrous.  He could have died from this attack.

38.  She can count herself lucky that the prosecution did not press for a more serious charge against her bearing in mind that the defendant received consultation from the psychiatrist 4 days after the incident, she was diagnosed with “severe depressive episode without psychotic features, suicidal and homicidal attempt.” She had “high suicidal and violent risk.”

(that letter dated 21 March 2021 was from Queen Elizabeth Hospital to Siu Lam Psychiatric center and was annexed in the defence’s mitigation bundle)

39.  Against this background, I disagree with the defence, I find that the incident was a planned and premediated one. 

40.  Apart from his left index finger, the victim’s injury consisted of laceration on the left side of his neck which he had received 9 stitches on the wound, the victim complained of numbness under the left jaw with mild asymmetry on the mouth. 

41.  The victim had submitted a letter to this court by stating that it was due to miscommunication between them that resulting in this tragic incident. 

42.  I have read the short letter several times.  I cannot be sure that he had forgiven what the defendant had done to him.  He might have written the letter out of guilt because he was the one to desert her.  He did not expect the defendant would react in this way. 

43.  As said in the judgement of HKSAR v Chan Chun Tat [2013] 6 HKC 225 that:-

“ (7) … where there was evidence from the victim that the sentence passed on the offender was actually aggravating the victim’s distress then the court might moderate the sentence to some degree. …”

44.  It does not appear in the present case, as such, I placed very little weight on the victim’s letter. 

45.  Before sentencing, I called one psychiatric report and one psychologist report, today they are ready before me and they have been explained to the defendant.  Suffice to say that the defendant’s “mental condition is now stable, she looks forward to turn over a new leaf, she is not harboring any depressive thoughts or self-harm or aggressive ideas”.

46.  The psychiatrist said that the defendant has recovered from her adjustment disorder while psychologist said that “her risk of violent reoffending was low.”

47.  In sentencing, I bear in mind the judgement of HKSAR v Chan Chun Tat [2013] 6 HKC 225 that:-

“in arriving at an appropriate sentence, the Court would have regard not just to the need to punish the offender for his conduct, but also to the sentencing principles of deterrence, both general and individual and, in appropriate cases, the need to denounce the resort to violence. … the Court must make clear that violence would never be regarded as an acceptable way of dealing with personal issues” (paragraphs 50 to 51).

48.  Simply put, the defendant could not resort to violence when the relationship turned sour. 

49.  With all the information in mind, I consider that an appropriate sentence is one of 6 years, given the ⅓ discount, it reduces to 4 years.