HKSAR v. AU CHI WAI

DCCC 428/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 428 OF 2016

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Reasons for Sentence

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

2.  He has also agreed the facts of the case, which show that he and the victim were known and acquainted with each other for about a year, and the defendant apparently owed some money to the victim.  It was a small sum of money, about $3,000.

3.  The defendant and the victim had met on 6 April in the morning.  The defendant had been pressed about the debt he owed to the victim and had said he would return that money later in the day, and by the early evening, the defendant had brought the victim back to his home for the purpose of settling that debt.

4.  The facts show that the defendant is said to have become emotionally unstable, rummaging around the flat for about five minutes.

5.  He took a cleaver from the kitchen inside the flat and chopped the back of the victim’s head.  It was done once, and the victim was escaping from the flat at the time.

6.  The defendant was arrested shortly after.  He admitted he had chopped the victim because the victim had been forcing him to repay his debt, and he said he had done it out of anger.

7.  As far as the injury to the victim is concerned, he had a sustained deep laceration on his occipital scalp.  This is a wound that required 13 stitches.  The victim was discharged from hospital on the same day.  There is no evidence of any residual problem from that cut wound that he received on the back of his head.

8.  The defendant’s antecedents have been admitted. The antecedents statement shows that he is aged 24.  As far as his previous convictions are concerned, back in 2007 he was placed on probation for unlawful sexual intercourse with a girl under 13.  Of course, at that time he would have been very young himself.  It does not seem to me to be a conviction that is relevant to my determinations today about the defendant, it being of a completely different nature.

9.  Such mitigation advanced is that the offence cannot be seen to be as planned or premeditated.  It would have been a spontaneous response that came out of his emotional state.  The defendant has no history of violence.  The injuries to the victim cannot be described as the most serious, but had been a cut that required 13 stitches.

10.  Also, the defendant is entitled, at this stage, to a one‑third discount for his plea.

11.  As far as the starting point for sentence is concerned, there is no actual guideline for this offence, although sentences have ranged, and been said to range, between what is described as a customary sentence of 3 to 12 years’ imprisonment.  The range in which these offences can take place is so large that it is thought that a guideline is not an appropriate way to describe them.

12.  It has been said that the court must, of course, determine the gravity of the offence, and in determining that, that the factor of primary importance has been said to be the intent of the assailant to cause the victim really serious bodily harm.  Whether that intent is fully realised in the injuries sought to be inflicted is said to be of secondary importance. Even though the consequences to the victim are an important factor, the gravity of the offence lies in the deliberate resort to violence with the intent to cause serious bodily harm.

13.  Thus, when looking at the factors to which a court will have regard in determining the gravity of an offence of this nature, a section 17 offence, and the culpability of the offender, it will relate to the type of harm intended to be inflicted, the means by which that harm was inflicted, and the circumstances generally surrounding the assault, and as far as the relevant factors are concerned, the usual ones would be 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, and also the type of weapon employed and the level of force and aggression and persistence with which the assault was pressed home; and, finally, the injuries caused to the victim and the effect of the assault upon the victim.

14.  This is quite a straightforward offence.  The weapon itself is a cleaver taken from a kitchen; thus is what could be described as a weapon of opportunity, and so there was clearly a lack of planning in the offence.  The injury was inflicted to the back of the victim’s head by one blow, so there was no persistence or repetition in that, and was done, it is described, as the result of the emotionally unstable state the defendant found himself in.

15.  The nature of the assault, which is serious in itself, fortunately did not lead to any long-lasting damage to the victim, but the infliction of the blow using a cleaver to the back of the head of course could have resulted in very serious injuries, and striking a blow to the head is, of course, a serious matter.

16.  We know little about the effect of the assault upon the victim other than the fact that he received the injuries for which he was discharged from hospital on the same day.

17.  As far as the personal circumstances of the defendant are concerned, he is a young man with no history of violence, and has shown remorse by his plea of guilty.

18.  Taking all these factors into consideration, I find myself in agreement with Mr Wu’s submission that this is at the lower end of what is called the customary sentencing band, and I do believe that the gravity of this offence can be taken into account and can be realised by a starting point for sentence of 3 years’ imprisonment.

19.  After the one-third deduction for the defendant’s plea of guilty, that will lead to a final sentence of imprisonment of 2 years.