HKSAR v. CHEN JINHUI

DCCC 430/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 430 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to four charges:

(1) Charge 1, burglary;

(2) Charge 2, inflicting grievous bodily harm, contrary to section 19 of the Offences against the Person Ordinance, Cap 212;

(3) Charge 3, wounding with intent, contrary to section 17(a) of Cap 212;

(4) Charge 4, wounding, contrary to section 19 of Cap 212.

Charge 1

2.  Chinese Goods Centre Limited operated a three-storey department store situated at King’s Road, North Point, Hong Kong (“the department store”).  It operated daily between 10:30 am and 9:30 pm.  All entrances were secured after the department store had closed for the day. 

3.  On the evening of 17 March 2017, Choy Ping Kai (PW1), 64 years old; Cheung Tsun Wong (PW2), 68 years old; and Lee Ching Cheong (PW3), 68 years old were the security guards on duty at the department store.  At around 11 pm, PW1 saw the defendant on the first-floor staircase.  The defendant claimed that he had lost his way.  PW1 offered to lead the defendant out of the department store.

Charge 2

4.  When PW1 led the defendant to the luggage section on the first floor, PW1 saw PW2 there.  PW1 then saw the defendant swing a hammer at his right side.  PW1 dodged the attack.  The defendant immediately rushed forward and pushed PW1, who fell onto the floor as a result.

Charge 3

5.  After the defendant pushed PW1 onto the floor, the defendant rushed towards PW2 and struck PW2 on his head twice with the hammer he was holding.  PW2 grasped the right hand of the defendant in which the hammer was held. 

6.  However, the defendant took out a screwdriver, about 15 cm in length, with his left hand and stabbed PW2 with the screwdriver many times.  PW2 grabbed both hands of the defendant and they both fell onto the floor during the struggle.  The defendant continued to try to strike PW2 with the hammer after PW2 fell onto the floor.

Charge 4

7.  At this juncture, PW3 arrived and assisted in subduing the defendant.  The defendant put up a struggle and hit PW3’s face with his screwdriver once during the struggle.  The defendant was eventually subdued and a report was made to the police.

8.  The police arrived at the scene and arrested the defendant. 

9.  Under caution, the defendant stated that he came to Hong Kong and ran out of money.  He tried to look for a job at construction site but failed.  He went to a metal store and purchased a hammer, a pair of pliers, a screwdriver, a pair of gloves and a torch, to see if there was anything for him to steal.  He entered the department store at around 9 pm and hid himself there with the intention to steal after the department store was closed.  As he thought PW1 was going to arrest him, he took out his hammer to resist. 

PW1’s injuries

10.  There was bruising over PW1’s hands.  X-ray of lumbosacral spine showed fracture and collapse of the fourth lumbar spine.  He was fitted with thoracolumbar orthosis and received physiotherapy.  He was able to walk well and was discharged from hospital on 20 March 2017.

PW2’s injuries

11.  There were abrasions on PW2’s chest and multiple lacerations over his forehead, face and nose, with suturing done.  He was discharged from the hospital on the same day.

PW3’s injuries

12.  PW3 was found to have a 2-cm superficial linear laceration at his right face.  The wound was sutured and he was discharged from the hospital on the same day.

13.  The defendant arrived in Hong Kong on 13 March 2017 on the strength of a two-way permit.  He was permitted to stay in Hong Kong until 20 March 2017. 

14.  The defendant is 46 years of age.  He has a criminal record in Hong Kong.

15.  In mitigation, Mr Hung, solicitor for the defendant, told the court that the defendant lived on the Mainland with his wife, who suffered from a kind of immunity disorder, which required constant medical care.  The defendant himself also suffers from eye disease and he lost his job as a result of his deteriorating eyesight.  He is expecting to receive his third surgery on his right eye in March next year.

16.  Having lost his job on the Mainland, the defendant borrowed a lot of money from his friends and relatives.  Eventually he came to Hong Kong with the intention to find a job here.  The defendant said that he did not know that he needed a Hong Kong ID card to be employed here.

17.  It was submitted in mitigation that on the day in question the defendant only randomly chose the department store in this case to steal.  He did not intend to hurt anyone when he entered the shop to steal. When he was discovered, he panicked and therefore committed the assault offences.

18.  It was submitted that, although the victims are in their 60s, the age of the victims should not be considered an aggravating factor, as the defendant would not reasonably know their age, given the lighting condition inside the department store.  Hence it was not a case that the defendant knowingly attacked the elderly.

19.  The court was also told that the defendant himself also suffered injuries in this case.  His head was bleeding at the time of arrest by the police officers.  The defendant was told by his attending doctor that one of his fingers was fractured and is now deformed.  The defendant also claimed to be hearing echoes as a result of brain concussion. Yet, no medical report has been submitted in support of his claim.

20.  Mr Hung told the court that the defendant was in tears when he was interviewed, saying that he was extremely remorseful.

21.  The offences committed by the defendant are indeed very serious offences, the gravamen being the possession of equipment to burgle and using murderous weapons to attack security guards. 

22.  It was said that the defendant did not intend to injure anyone when he entered the department store and he only committed the assault offences out of panic.

23.  Accepting the mitigation, I am sure that the defendant knew very well that when he used the hammer and screwdriver to strike at the prosecution witnesses, it might cause very serious injuries to them. His intention was clearly to resist the security guards, whom he thought were going to arrest him.  That was an aggravating factor in this case.

24.  The three prosecution witnesses, security guards in the execution of their duties, were innocently inflicted with massive injuries.  The hammer and the screwdriver could be lethal weapons.  The defendant struck his hammer on the head of PW2, a very vulnerable part of his body, twice and stabbed PW2 many times with a screwdriver.  It was only by sheer luck that PW2 did not sustain more serious injury.

25.  The defendant is not a resident in Hong Kong. He came to Hong Kong as a visitor.

26.  In my judgment, the sentences to be imposed must have deterrent effect, both generally and individually.

27.  On Charge 1, I take 2½ years’ imprisonment as a starting point.

28.  On Charge 2, I have considered the progress of recovery of PW1.  I am told by the prosecution that PW1 is still receiving physiotherapy because of his pain in his lower back.

29.  In relation to the attack on PW1, while the defendant used a hammer, he was only charged under section 19 of Cap 212.  The maximum penalty for this offence is only 3 years’ imprisonment.

30.  Given the intention of the attack, the use of the hammer, the potential risk of injury the hammer might have caused, and the actual serious injury caused to PW1, I take 2½ years’ imprisonment as the starting point on Charge 2.

31.  Charge 3 was laid against the defendant under section 17 of Cap 212.  The maximum term is life imprisonment, as the gravamen of the offence is the intention to cause grievous bodily harm.  While it is often said the usual range of imprisonment for this offence is 3 to 12 years, there is no sentencing tariff for this offence.  The sentence is case specific.

32.  In HKSAR v Chan Chun Tat [2013] 6 HKC 225, the Court of Appeal reiterated the seriousness of the offence and restated some relevant factors in determining the gravity of the offence.

33.  Given all the circumstances in this case, in particular, the nature of the weapons, the motive of the attack, the way PW2 was attacked and the actual injuries caused to PW2, I take 4½ years’ imprisonment as the starting point.

34.  On Charge 4, PW3 only sustained a 2-cm laceration on his face, which is not a very serious one.  It does not appear, on the facts, that the defendant attacked PW3 with his hammer.  However, a screwdriver could have caused very serious injuries to the eyes of PW3.

35.  I adopt 18 months as the starting point.

36.  With the number of victims and the principle of totality taken into account, a total term of 5½ years’ imprisonment for all the assault charges would be appropriate.

37.  I would adopt 6½ years’ imprisonment as the overall starting point for all the four offences.

38.  Financial difficulty of the defendant or his family cannot be a mitigating factor for the serious offences in this case. 

39.  It is said in mitigation that the defendant suffered injuries during the scuffles with the prosecution witnesses: one of his fingers is now deformed and he always hears echoes.

40.  There is no evidence or medical proof to support his claim.  In any case, he brought the injuries upon himself.  Even if it were true, the injury was not of a kind so severe that it should be reflected in his sentence.  See Yip Kai Foon v HKSAR (2000) 3 HKCFAR 31.

41.  Apart from his plea of guilty, there are no mitigating factors in this case.

42.  For his guilty plea, I will give him the fullest discount by reducing one-third of his sentence. 

43.  He will be sentenced to a total term of 4 years and 4 months’ imprisonment.

44.  The defendant is sentenced as follows:

(1) Charge 1: 20 months’ imprisonment;

(2) Charge 2: 20 months’ imprisonment;

(3) Charge 3: 3 years’ imprisonment;

(4) Charge 4: 1 year’s imprisonment.

45.  To reach the total term of 4 years and 4 months’ imprisonment, I order that 8 months out of the sentence in Charge 2 shall run consecutively to the sentence in Charge 3; sentence in Charge 4 shall run wholly concurrently with the sentences in Charges 2 and 3.

46.  So the sentences of Charges 2 to 4 will make a total term of 44 months.  8 months out of the sentence in Charge 1 will run consecutively to the total sentences of Charges 2 to 4, making a total of 4 years and 4 months’ imprisonment.

47.  This is the sentence the defendant has to serve for the present case.