HKSAR v. WONG TAT CHI

DCCC 591/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.591 OF 2013

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of Wounding with Intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. Particulars of the charge are that he on 14th April 2013, outside ground floor of Heng Tsui House, Fu Heng Estate in Tai Po, unlawfully and maliciously wounded Lai Wai Kwong, with intent to do him grievous bodily harm.

2.   Summary of facts

3.  The defendant and the 52 year old victim both reside at Fu Heng Estate but they did not know each other. At about 10:15am on 14th April, while the two of them were watching people playing chess at the ground floor of Heng Tsui House, they had a dispute over some chess playing tactics. There was some physical contact and bumping into each other. The defendant left the scene while the victim stayed.

4.  About 25 minutes later, the defendant having bought a chopper from a nearby shop returned to the chess playing area and chopped the victim on the back of his neck, shouting that he will chop him to death. People standing by managed to stop the defendant from further attacks and the defendant fled.

5.  The victim was escorted to hospital and received 5 stitches for his neck wound. He was discharged on the same day.

6.  Police officers conducted investigations and searched the Fu Heng Estate area. The defendant was spotted at about 12:55pm and was intercepted. Upon enquiry, he admitted that he had chopped someone that morning at Heng Tsui House.

7.  Under caution and in the subsequent video recorded interview, the defendant claimed he argued with someone when watching others playing chess. The other person punched his left face once from behind. The defendant then went to buy a chopper for $80 at a nearby shop, intending to use it to scare him. The defendant claimed he used the blunt side of the chopper to hit the victim's left shoulder for one or two times, he did not notice if the victim was injured and he did not think he would be. The defendant denied shouting he will chop the person to death.

8.  Closed circuit television footage captured the defendant buying the chopper and then walking to where the incident took place at about 10:40am. The defendant was positively identified as the assailant in an Identification Parade.

Previous Convictions

9.  The defendant has one conviction for assault occasioning actual bodily harm and one for gambling in 1987 and 2012 respectively.

Mitigation

10.  Mrs. Wong for the defendant prepared a helpful written submission.

11.  The defendant is 52 years old. He had been working as a driver for Acto Stationery Limited since 1997. The company has written to the court to indicate that they are willing to re-employ the defendant after he had served his sentence.

12.  The defendant had taken part in charity work, helping to deliver household items, stationery and toys to elderly homes and charitable organizations.

13.  The defendant suffered work injuries about 10 years ago which resulted in his right hand and left leg being permanently impaired with 14% permanent disability. The defendant continued to be gainfully employed and supported the family despite his injuries.

14.  Although the defendant has 2 previous convictions, only the first one was related to violence and the conviction dated back to 1987 and is regarded as spent under the Rehabilitation of Offender Ordinance, Cap.297. The only other conviction was for gambling in 2012 when he was fined $300.

Cases

15.  Mrs. Wong referred to the cases of HKSAR v Wong Keung, DCCC 322/2013, Secretary for Justice v Hung Kar Chun [2011] 1 HKLRD 1083, CAAR 9/2010 and Secretary for Justice v Hau Ping Chuen, CAAR 12/2007 in her submissions.

16.  Ms. Go for the prosecution referred to the cases of Secretary for Justice v Yu Yat Sang [2011] HKLRD A5, CAAR 2/2010 and HKSAR v Chu Sze Wing [2012] 4 HKLRD I5, CACC 289/2011.

17.  In Chu Sze Wing, the applicant and the victim lived in adjoining cubicles and were on bad terms. On the day of the attack, the applicant lost his temper, grabbed a chopper, banged on the victim’s door and struck his face, inflicting three 3-5 cm wounds to his forehead, right cheek and left corner of his mouth, causing considerable bleeding. The victim managed to grab the applicant’s wrist and they remained locked together until Police arrived. As it turned out, the victim’s wounds were not serious and he was discharged from hospital the same day, with some scarring but no permanent disability.

18.  The Court of Appeal found that there was no premeditation in the commission of the offence, that the applicant had acted impulsively and the time lapse between his loss of self-control, his seizing of the chopper and his attack would only have been seconds. Given that the injuries were not serious, the Court found that an appropriate sentence was 4 years’ imprisonment after trial.

19.  At paragraph 18 of the Reasons for Judgment, the Court referred to the passage in the case of Secretary for Justice v Hung Kar Chun [2011] 1 HKLRD 1083 where a practical definition of what constituted the aggravating feature of premeditation was given:

“This was not purely an unpremeditated case. It was not the case that the respondent offhandedly picked up an object at the scene to attack PW1 when he was engulfed in rage. His acts were planned and malicious: after the two had an argument over the phone, the respondent left the mall and took a 10 minutes’ walk to buy a weapon before returning to the mall. On the way, he even phoned his girlfriend, making threatening remarks to PW1. This is different from the circumstances where a person attacked another person having lost control of his emotions as a result of a dispute.”

20.  In the actual case of Hung Kar Chun, the respondent attacked the elder brother of his girlfriend after being disgruntled at the elder brother’s attempts to persuade his girlfriend to break up with him. On the day of the attack, while the brother and girlfriend were at a shopping mall, the respondent kept calling his girlfriend and so the elder brother asked the respondent to meet to negotiate a solution. The respondent then went to a shop 10 minutes away and bought a 20 cm fruit knife. The respondent then went to the mall and attacked the elder brother, resulting in serious injuries which required his spleen to be removed.

21.  The Court of Appeal, in substituting a sentence of 2 and a half years’ imprisonment, stated that the court would impose more severe punishments involving such weapons as a chopper or knife on minor provocation or in a dispute. The Court, as mentioned above, also found that it was not purely an unpremeditated attack.

Sentence

22.  The maximum sentence for s.17(a) is that of life imprisonment.

23.  The victim’s injuries are not serious. He did need 5 stitches but was able to be discharged on the same day. There is no suggestion that he would suffer any long term physical damage.

24.  The defendant left the scene of the dispute and walked a short distance to a shop nearby to buy a chopper. He then walked back to the scene and carried out the attack. The dispute and the buying of the chopper was some 15 to 20 minutes apart, the defendant had enough time to calm down and consider his actions. Yet he still made the decision to attack the victim. It was not a spur of the moment attack. With reference to the practical definition of premeditation quoted above, I find that there was premeditation in the defendant’s commission of the offence.

25.  Although the injury to the victim in our case is not serious, the gravamen of this offence lies in the type of harm to the victim that the defendant intended to cause. Any intentional blow with a chopper aimed at the head or neck of another person is risking the life of another. I do find however that the blow was not applied with a lot of ferocity, or Mr. Lai would have suffered far more serious injuries given that there was no warning before he was attacked and he had no opportunity to defend himself from the blow.

26.  Bearing in mind the circumstances of the case, the good employment record of the defendant, his charitable acts and his minor criminal records, but balancing that with the seriousness of the offence, the sentence in other similar cases, in particular Chu Sze Wing, I find that an appropriate starting point is that of 4 years’ imprisonment. I will grant the defendant the full one third discount upon his plea of guilty and sentence him to 2 years and 8 months’ imprisonment.