HKSAR v. LI MAN YIU, GARY

DCCC 910/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 910 OF 2008

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of causing grievous bodily harm with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Chapter 212 (charge 1) and one charge of criminal intimidation, contrary to sections 24(a)(i) and 27 of the Crimes Ordinance, Chapter 200 (charge 2).

2.  Between April and September 2008 the defendant cohabited with Madam Leung Pui-yi.  In early September the defendant began to suspect Madam Leung was having an affair with a male colleague.  At about       6 pm on the 15th September 2008 the defendant demanded access to Madam Yeung’s MSN account to check what messages she had sent on the internet. 

3.  When Madam Leung refused the defendant proceeded to hit her by repeatedly punching and kicking Madam Leung.  When Madam Leung tried to leave the defendant caught hold of her and continued his attack upon her.  On asking to leave to seek medical treatment the defendant told Madam Leung if she tried to leave she would not be going to hospital but to the mortuary.  

4.  At about 11 pm a colleague of Madam Yeung called the police because he had been unable to reach Madam Yeung on her mobile telephone.  The police went round to the premises where they cohabited and found both the defendant and Madam Yeung.  Madam Yeung was sent to hospital where she remained for two days. 

5.  Madam Yeung suffered from multiple bruises to the face and body and a fractured wrist as shown in the photographs and set out in the medical reports submitted to the court.  Photographs 1 and 2 show bruising to the face although I note the bruising to the right eye is not mentioned in any of the medical reports.  Bruising to the right arm and hand is shown in photographs 5-8 and to the left knee and shin in photograph 9.  The bruising to the left arm and hand are not shown as these are covered by the plaster cast put on the fractured left wrist.

6.  Initially chest x-ray showed no rib fracture (see the medical report from Queen Elizabeth Hospital dated the 2nd October 2008).  However when Madam Yeung attended St Teresa’s Hospital on the 24th September 2008 complaining of chest pain she was found to have fractured her left 7th to 9th ribs (see the medical report from St Teresa’s Hospital dated the 21st October 2008). 

7.  Madam Yeung has confirmed today she has fully recovered from her injuries save she still receives weekly physiotherapy on her wrist, as a result of a dislocated bone.  This results in occasional pain and prevents Madam Yeung from carrying heavy items.  The doctor is unable to say how long Madam Yeung will need to continue receiving physiotherapy.

8.  In passing sentence I have carefully considered everything said by Mr Ching together with the letters submitted on the defendant’s behalf.   The letters from family, colleagues and friends all speak very highly of the defendant.  The offences are for a man of clear record and the background of the defendant clearly out of character.  I take into account the good character of the defendant in determining the proper starting point (see Secretary for Justice v CHAU Wan-fun [2006] 3 HKLRD 577, which is a case involving domestic violence).

9.  Mr Ching asks that I consider community service.  I am satisfied there are no exceptional circumstances warranting the imposition of a community service order for such a serious offence.  The courts take a serious view of domestic violence.  Domestic violence of any kind cannot be tolerated.  Deterrent sentences are required not only to deter the individual but also to deter those persons like-minded to use violence to resolve domestic disputes.

10.  I am satisfied the proper sentence after trial for causing grievous bodily harm with intent is 2 years imprisonment and for criminal intimidation 12 months imprisonment. 

Forgiveness

11.  Madam Yeung wrote in November last year that she forgives the defendant and hopes that he does not go to prison.  Madam Yeung is in court today and has confirmed that she has forgiven the defendant.  In the R v Buchanan [1980] 2 Cr App R (S) 13 as applied in Secretary for Justice v CHAU Wan-fun [2006] 3 HKLRD 577, the court held that the fact the offence was committed within a domestic context and the victim had forgiven the offender, did not deflect from the duty of the court to impose a sentence appropriate to the gravity of the offence.  I note that in both those cases knives were used.

12.  I accept the defendant is truly remorseful for his actions as shown by his pleas of guilty and his wish not to see Madam Yeung testify.  The fact he acted in the belief Madam Yeung was having an affair and did not want to lose her, whether that belief was justified or not, is however no reason for attacking Madam Yeung by repeatedly punching and kicking her and threatening her she would end up in the mortuary.  This was a brutal, cowardly and inexcusable attack, which must have been an extremely frightening experience for Madam Yeung.  Notwithstanding Madam Yeung has now forgiven the defendant I am satisfied a deterrent sentence is required.  I nevertheless take into account in passing sentence that Madam Yeung has forgiven the defendant.

Mental disorder

13.  I have carefully considered the psychiatric report of Dr Chen.         Dr Chen is of the opinion that the defendant has been suffering from Substance Induced Mood Disorder. 

14.  In HKSAR v CHIU Peng, Richard [2002] 1 HKC 401 the Court of Appeal accepted that a court may properly allow a discount in sentence where a defendant is suffering from mental illness which played a part in the commission of the offence.  The court said the justification for a discount in sentence by reason of mental illness was as a reflection of diminished criminality or culpability on the part of the accused who has committed a crime under an abnormal state of mind.

15.  ;The defendant has since a young age suffered from skin disorder for which he regularly takes medication, including prednisolone.  Prednisolone is a kind of steroid, which is notorious to cause mood disturbance.  Dr Chen opines that under the influence of prednisolone the defendant was more irritable and more easily provoked and therefore had difficulty in controlling his anger and misbehaviour.  I accept the opinion of Dr Chen and take this into account in passing sentence. 

16.  Giving the defendant full credit for his pleas of guilty I reduce the starting points to 16 months and 8 months respectively.  Taking into account the forgiveness of Madam Yeung and that the defendant was suffering from mood disturbance I further reduce the sentences to 12 months and 6 months respectively. 

17.  The defendant is sentenced to 12 months imprisonment on charge 1 and 6 months imprisonment on charge 2.  I am satisfied concurrent sentences are appropriate both offences arising out of the same incident.  The defendant is sentenced to 12 months imprisonment.