HKSAR v. CHU CHUNG HING

DCCC538/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.538OF 2010

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Reasons for sentence

Summary of facts

2.  At about 10:20am on 16^th March 2010, PW1 accidentally stepped on the defendant’s foot while walking along the street. The defendant immediately pushed PW1 away and scolded him with foul language. An argument ensued and in the heat of the argument, the defendant took out a folding knife from his trousers pocket. The defendant held the knife in his right hand and pushed PW1 several times. the defendant also slashed PW1 once on his neck. PW1 punched the defendant’s head and escaped. The defendant himself then made a report to the police.

3.  At about 10:38am, the defendant was arrested and he admitted under caution to having injured PW1 with a knife. In the subsequent cautioned interview, the defendant admitted having slashed PW1 once on his neck with the knife. The defendant admitted that he had bought the knife long ago for peeling his toe and fingers.

4.  Medical examination revealed that PW1 had a 2cm stab wound over his left upper anterior neck area. Photos taken shortly after PW1 had been treated and his medical report on his injury were submitted.

Mitigation

5.  The defendant is 67 years old and is of clear record. I had the benefit of a meticulous submission in mitigation from Ms. So. Various letters were submitted to the court. They include old letters dating back to the 1960s, 70s and 80s verifying the defendant’s employment in the engineering and quarry industry. Letters by the defendant himself expressing his remorse. Letters by his daughters, telling this court about how the defendant had been an excellent father and a letter from the defendant’s relative, again testifying the defendant as being a kind and generous person.

6.  The defendant came to Hong Kong in 1962 when he was still a young man of 19 years old. He worked hard to make a living. As a result of constant exposure to the elements while working in the quarries, at the time of the incident he was suffering from loss of hearing in his ears, cataract in his eyes and a condition in his hands where the fingers are constantly in a contracted condition. It was submitted that his then health condition contributed to his loss of temper on that day.

7.  According to the letters in mitigation, the defendant has never been a violent person. It is submitted that the attack was totally out of character. The defendant is truly remorseful and in fact he was the person who reported the matter to the police and had since been fully cooperative, resulting eventually in his guilty plea. The defendant is also willing to compensate the victim in any amount as the court finds just and appropriate. In this case, I was informed by the prosecution that they seek a compensation order in the sum of HKD37,788.

8.  Ms. So, at my prompting, provided me with 2 cases where the defendant had been dealt with by way of non-custodial sentences. Ms. So did not submit those cases at first as she considered them unhelpful in the circumstances. Having read them, I agree with Ms. So.

9.  Ms. Chan for the prosecution very helpfully submitted 2 cases for my reference. They are the case of HKSAR v Au Yeung Chu, CACC 115/2002 and HKSAR v Yip Kee Kwai, HCMA 265/2008. Ms. Chan agrees that the circumstances in those cases are more serious than that of our case. The sentences nonetheless provide a helpful reference point.

10.  In the case of Au Yeung Chu, the victim suffered some permanent damage to certain nerves in her hand causing constant numbness in the victim’s thumb. The applicant in that case was a nurse who found out that her husband had a romantic association with another woman who was the victim. The applicant demanded to meet with the woman but was refused. She eventually found the victim in the washroom. After confirming her identity, the applicant used “a sharp implement of some kind to attack the victim in the region of her face”, causing injuries to her face, ear and hand.

11.  From the judgment of the trial judge, we can see that the applicant had “sought out” the victim, showing some degree of premeditation in the attack. A starting point of 9 months’ imprisonment was adopted in that case.

Sentence

12.  This is not an easy case to sentence. On the one hand, the defendant used a weapon in the attack on the neck of the victim. It was fortunate that he did not suffer more serious injuries, but the outcome could have been very different had the knife went deeper. There is however no evidence of any permanent damage save for the scar that the victim is trying to get rid of.

13.  On the other hand, the defendant is 67 years old and had a clear record. He worked hard his whole life and, but for this uncharacteristic attack, is easily a model immigrant to Hong Kong. He managed to raise 2 children who now contribute to society in their own right. He should be proud of this achievement.

14.  Furthermore, the attack was, unlike that in Au Yeung Chu, a totally spontaneous attack without any premeditation. The defendant suffered an uncharacteristic loss of control and succumbedtohis urge to use violence to resolve the matter.

15.  Nevertheless, to use a weapon to slash someone in the neck with a minimal amount of provocation is serious and I have no choice but to find that a sentence of imprisonment is necessary. Bearing in mind all the mitigating circumstances, most importantly his clear record, his age, and the fact that he is willing to compensate the victim, I will adopt a starting point of 6 months’ imprisonment, reducing that to 4 months upon the defendant’s guilty plea and sentence him to 4 months’ imprisonment.

16.  I will further order the defendant to pay compensation in the amount of HKD37,788,to be paidwithin 1 month from today.