HKSAR v. CHOW BENJAMIN also known as TSENG WESLE

DCCC 650/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 650 OF 2016

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Reasons for Sentence

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1.  The defendant has been convicted after trial of one offence of wounding, under section 17(a) of the Offences against the Person Ordinance, Cap 212.

2.  I do not propose to rehearse the facts in any great detail; they can be found from the reasons I gave for verdict.  Suffice to say this involves a dispute between neighbours on the 9th floor of a public housing estate in Shek Kip Mei in Sham Shui Po.

3.  The upshot of the case was that the defendant, using a pocket knife which had been in his home, in my findings, assaulted and wounded the victim by stabbing and slashing him with that knife.  The injuries to the victim involved a stab wound and also wounds from the slashing.  The stab wound entry site is about 3 centimetres beneath the nipple, and a chest drain was inserted largely because of that injury.  The description of that is “The culprit bleeder was an intercostal artery spurter caused by the entry of the knife into intercostal muscle.”  The details of the injuries are set out again in the reasons for verdict.

4.  The final results in the final report is that the victim had a good recovery and was discharged on 1 May and had sick leave granted between 22 April and 1 May for this matter.

5.  The defendant’s antecedents are as follows.  The defendant has two recorded convictions:  firstly, a conviction on 26 January 2012, for which he was fined $6,000 for behaving in a disorderly or noisy manner; and then finally, on 11 September 2015, he was fined a further $2,000 for common assault.  His other details taken from the antecedents statements are that he is aged 33; he has attained the level of an associate degree at university standard; and was, at the time of his arrest, involved in personal investment and online trading, living at Room 910 in Mei Choi House in Shek Kip Mei.

6.  During the course of the trial it became apparent that there was some background to this case involving what might be described as a neighbour dispute between himself and the victim.  I obtained a probation officer’s report to investigate the background to the offence that was not brought out in the trial and the wider background.  The background report is helpful in this case by introducing a number of factors which were not ventilated in any great detail in the criminal trial but do provide helpful background information when coming to look at the correct approach to sentence against this particular defendant.

7.  The probation officer’s assessment of the defendant is as follows.  He is described as a decent, egocentric singleton(?) with an associated degree in law and much passion to serve the community through his part-time and full-time public posts.

8.  The victim of the defendant is described as follows.  He is a triad gangster, ex-prisoner, alcohol and drug addict who has taken over the 9th floor of Mei Choi House, which is where the assault took place, with verbal harassment and physical intimidation.  He has also invited, it says, Thai prostitutes to sleep over, take drugs and party in his flat, cause annoyance and other nuisance day and night.  The majority of the older female or underage tenants - that is, on the floor - have submitted themselves to the intimidation of the accused, and it says that his strong civic mind has been among the few ready to lodge complaints to the Housing Department and stand up against the persistent harassment of the victim in their neighbourhood.  There is in fact a petition that has been signed by the other residents in favour of the defendant.

9.  The complaints of the other residents of the 9th floor of Mei Choi House which were investigated by the probation officer in respect of the victim in this case describe him as involved in the following acts:  shouting coarse language and threats in the public corridor to insult and intimidate neighbours day and night; kicking, spitting and pouring beer at the iron gate next door to scare neighbours; bringing Thai prostitutes to party; throwing bags of faeces from a window at a neighbour’s home; sexually harassing and peeping at women neighbours through the iron gate; attacking security guards and police officers summoned by neighbours to stop the noise and other nuisance; and passing out due to drug overdose at home, warranting the summoning of firemen and police to break in for the emergency; and repeatedly causing nuisance to neighbours.

10.  That would appear, on the assessment of the probation service, to form the wider background to this offence.

11.  I also obtained a psychological report on the defendant because his criminal record did appear to show a worsening or at least a progressive offending in his background, and the psychologist has picked up on that problem, describing it as there being an escalation of violence in Mr Chow over time.  It says that he lacks remorse and insight into his problems, and in view of his age, his criminal history, his psychological profile, his victim characteristics and given the nature of the present offences, risk of recidivism of violent offences against the same victim was assessed to be high.

12.  That must be a correct analysis if Mr Chow, the defendant, and the victim remain living cheek by jowl in this public housing estate.

13.  I have to approach this case on the background of what I know about it.  Firstly, the normal approach to sentence.  There is no guideline sentence for a section 17(a) offence, but the Court of Appeal has, in the past, said that a range of sentencing with a starting point for sentence of between 3 to 12 years’ imprisonment is appropriate for this offence. This is a serious offence.  To wound people with intent to cause grievous bodily harm to them is a serious matter that cannot be taken in an ill-advised or unadvised way by the court.

14.  However, an examination of authorities or previous cases in relation to this offence shows there is a wide range of sentencing.  There is no actual tariff sentence, and this is because the range of circumstances in which these offences can be committed is very broad, and this case is in fact illustrative of how broad those offences can be.

15.  This is essentially a neighbour dispute where, on the face of the reports I have, the defendant has been subject to a long‑term provocation by the behaviour of the victim; not only the defendant, but also other residents of that floor, by outrageous and thuggish behaviour by the victim.  That is clearly a mitigating factor.

16.  The offence itself shows, on the evidence of PW2, that prior to the wounding taking place, the victim had called the defendant a moron, and it is after that that, on the evidence I heard, Mr Chow picked up the folding pocket knife in his house and then went down into the corridor and attacked the victim with that knife.

17.  In determining the proper sentence, I must look firstly at the nature of the assault.  There was, as I have said, long-term provocation, and also provocation immediately before the incident took place. The defendant’s reaction is necessarily inappropriate, and to a certain extent the psychologist’s report helps in assessing why that is.  The defendant seems to be psychologically disposed to overreact to such provocation and acting in an inappropriate and violent way.

18.  The next factor to consider is the injuries that were suffered by the victim.  Here he has a number of injuries consistent with being slashed with a knife and stabbed with a knife.  There is one particularly serious injury which required a wound to be drained.  But the victim appears to have made a full recovery from those injuries, save for some residual scarring caused by the attack by the knife, and that is another factor that is important in determining the level of sentencing is the fact that there has been what appears to be a full recovery and no residual injury.

19.  I must also look at the personal factors of the defendant.  He is an educated and intelligent man.  Although he has previous convictions in relation to violence, he has only been dealt with by way of a financial penalty in the past.  He had what would appear to have been a promising career until his involvement in offending, and it is unfortunate that his life has taken this turn, but it is to be hoped he can learn a lesson from it.

20.  To determine the actual sentence in this case must involve a balancing of all the factors that I have set out.  Clearly, people cannot take, even in the face of long‑term anti‑social behaviour by another person, the law into their own hands, and must be deterred and discouraged from doing so.

21.  However, it does appear that the defendant’s reaction in this case was caused by a momentary insult to which he overreacted, and was not premeditated in any real sense.

22.  Taking all those factors into consideration, I consider that an immediate custodial sentence must still be imposed on the defendant.  The injuries to the victim, on the face of them, would require a sentence of imprisonment which would be near to the guideline or the recommended range of sentencing.  However, I believe that that starting point can be reduced having regard to the other factors that I have set out in this judgment.

23.  Taking all these matters into consideration, I consider that the appropriate sentence for this defendant in respect of this particular charge is one of 15 months’ imprisonment.

24.  That is the sentence I will impose: 15 months’ imprisonment.