HKSAR v. HE JIANPENG

DCCC 932/2024

[2024] HKDC 1960

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 932 OF 2024

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REASONS FOR SENTENCE

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1.  Mr He pleaded guilty before me to one charge of Wounding with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap 212. Particulars are that he, on 19 February 2024, at Room 1941, Sau Yuen House, Chuk Yuen South Estate, Wong Tai Sin, Kowloon, in Hong Kong, unlawfully and maliciously wounded He Bingquan with intent to do him grievous bodily harm.

Facts admitted by Mr He

2.  At the material time, Mr He was 16 years old and a Form 2 student.  He lived with his parents at Room 1941 aforesaid (“the Unit”).

3.  The Unit consisted of one living room and two bedrooms.  Each of Mr He’s parents occupied one bedroom, while Mr He’s bed was placed outside the bedroom of his 44 year-old father namely He Bingquan (“the father”).

4.  On 19 February 2024, at about 7:25 am, Mr He and the father were alone in the Unit.  Suddenly, while the father was using his mobile phone on his bed, Mr He rushed in and stabbed the father with a knife for a total of 3 times before leaving the bedroom with the knife.

5.  At 7:49 am, Mr He reported the case to the police.

6.  At 7:53 am, the police and the ambulance-men arrived.  Mr He was standing just outside the Unit.  Upon enquiry by the police, Mr He voluntarily said that:

(a)  He hated the father, who was bad-tempered and was always gambling;

(b)  He got up at 6:25 am that day;

(c)  After considering for about 30 minutes, at around 7:25 am, he took a knife from the kitchen, rushed into the father’s room and stabbed the latter with it for 3 times;

(d)  The first strike targeted the father’s head; the second the right neck and the third the calf;

(e)  Seeing the father bleeding seriously, he became anxious and stopped the attack;

(f)  He placed the knife in the kitchen sink and washed away the bloodstains on his hands; and

(g)  He called the police.

7.  The father was found lying in bed, covered in blood but conscious.  He was taken to Queen Elizabeth Hospital.

8.  Mr He was arrested.  Under caution, he admitted stabbing the father with a knife because he hated the father.

9.  A knife with a 20 cm blade and a 12 cm handle with bloodstains was found in the kitchen sink.  A bedsheet, a blanket and some clothes previously worn by the father, all covered with bloodstains, were seized from the Unit.

10.  Medical report shows the father suffered:

(a)  A 7 cm right facial laceration extending to the ear;

(b)  A 6 cm laceration at the right hand;

(c)  A 1 cm laceration at the right medial thigh;

(d)  A 5 cm laceration at the right medial thigh; and

(e)  A 4 cm laceration at the right shin.

11.  The father was discharged from hospital on 27 February 2024 and he was granted sick leave until 13 March 2024.

Criminal record

12.  Mr He enjoys a clear record.

Antecedents

13.  Mr He is aged 17 (16 at the time of the offence), a student educated to F2 level.  He is single and resided with his parents in public housing in Wong Tai Sin.

Mitigation

14.  Mr Lam Shun Chiu of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr He.  The following is a summary of the mitigation submissions.

15.  Mr He’s parents (including the victim)  and grandparents were in court to give him support.

16.  Mr He was born in Guangdong.  In 2022, he came to Hong Kong with his mother to live with his father and grandparents.

17.  He continued his study in Hong Kong.  Since arrest, he has been remanded in custody.

18.  He has a clear record.  All his family members considered the offence was out of Mr He’s character.

19.  Mr He did well in school.  His academic results were good and he was active in extra-curricular activities.  The school report and extra-curricular activities record (both in Chinese submitted)  support the same.

20.  There has been long-term tension between both parents and Mr He.  Mr He was not drunk or drugged at the time of the offence.  According to what Me He told the police, he thought about the matter for 30 minutes before starting the attack.

21.  Mr He has his personal problems but he could not express his feelings. He has had a bad relationship with his father.

22.  Mr Lam submitted as per instructions that Mr He is not suffering from any mental or psychological problem.

23.  Mr Lam submitted that the present offence is an excepted offence and so section 109A of the Criminal Procedure Ordinance, Cap  221, has no direct application; nonetheless, given that Mr He was only 16 at the time of the offence (now 17), rehabilitation should still be an important sentencing consideration.

24.  Mr Lam further submitted that neither Detention Centre (DC)  nor Training Centre (TC)  Order is a soft option given their custodial element with built-in strict disciplinary training.

25.  Mr Lam submitted that the distinct advantage of a DC or TC Order is that although the punitive element would be compatible with the serious offence committed, Mr He can benefit from the provisions of the Rehabilitation of Offenders Ordinance, Cap 297, after he has done his time.

26.  Mr Lam urges the court to call for relevant reports before sentencing Mr He.

27.  Mr Lam submitted on behalf of Mr He a total of 7 mitigation letters (all in Chinese)  written respectively by Mr He himself, his father (victim), his mother, his paternal grandmother, his Deputy School Principal, his Form Master, and the extra-curricular teacher of the school.  The contents are generally that Mr He is regretful; that he acted out of impulse and out of character; that he is normally a courteous person; that his conduct at school was excellent.  The letter writers asked that a chance be given for Mr He’s reform and they asked for a lenient sentence so he may be released early to re-unite with his family and in due course to become a useful member of society.

28.  Upon enquiry by the court, Mr Lam submitted that the usual starting point is 3 to 12 years’ imprisonment.

29.  After the reports came back, Mr Lam submitted that they have been read and explained to Mr He and that he agreed to the information contained therein.  Mr Lam wanted to emphasize that the psychologist opined that the risk of re-offending is low.

30.  In view of Mr He’s young age, his remorse, and a better understanding of himself since the events, the court is urged to deal with Mr He by way of a TC order.

Reports

31.  Because of Mr He’s young age and the peculiar circumstances of the commission of the offence, I called for a DC and a TC Suitability Reports and also a psychological report on Mr He.

32.  The reports that came back have the following conclusions.

33.  First, the psychological report.  The conclusion was that although Mr He was assessed as low risk for future violence, psychological intervention on assertiveness, anger management, stress coping, family relationship and online gaming is recommended to prevent reoffending of violent behaviours.

34.  Next, the joint DC and TC Suitability Report.  The conclusion was that Mr He is medically unfit for detention in DC because of poor exercise tolerance and is therefore unsuitable for detention in DC; however, he is mentally, psychologically and physically fit for detention in TC.  The reporting officer opined that from the information available and after a general assessment of Mr He’s behavior and attitude while on remand, Mr He is considered suitable for detention in TC.

Sentence

35.  I have seen the photos (since returned to the prosecution)  of the some of the injuries suffered by the victim and of the weapon and the scene of crime.  The weapon was a pointed and apparently sharp knife of the type usually found in domestic kitchens.

36.  I am acutely aware of the severity of the injuries especially that involving a lengthy laceration on the face.

37.  The usual sentence after trial for this offence is 3 to 12 years’ imprisonment: HKSAR v Chan Chun Tat [2013] 6 HKC 225.

38.  The Court of Appeal in paras 49-50 of Chan Chun Tat gave helpful guidance to a sentencing court when dealing with this sort of case:

“49. … many of the factors to which a court will have regard in determining the gravity of a s 17 offence and the culpability of the offender 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. Thus, without attempting to exhaustively identi[f]y all the relevant factors, the usual ones will 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, whether alcohol or drugs contributed to the actions of the assailant, whether the assault was committed by the assailant alone or as a part of a group, the type of weapons employed, the level of force or aggression and the persistence with which the assault was pressed home, the injuries caused to the victim and the effect of the assault upon the victim and those close to him or her.

50. In arriving at an appropriate sentence the court will have regard not just to the need to punish the offender for his conduct, but also to the sentencing principles of deterrence, both general and individual, and, in appropriate cases, the need to denounce the resort to violence. Of course deterrence and denunciation are always important when there is resort to violence but there may be particular situations that call for greater deterrence, such as in triad gang or contract attacks, or more denunciatory sentences, such as in domestic violence cases.”

39.  Where domestic violence is involved, as in the present case, para 51 of the Reasons for Judgment has something more pertinent to say:

“51. In respect of the latter type of case the courts have long played a role in denouncing a resort to violence. People living together, whether they are husband and wife, parent and child or in any other relationship, inevitably suffer stresses from their work or personal life which may manifest themselves within the home environment in arguments or emotional outbursts. How people, within the privacy of their homes, resolve their problems is not usually a matter that concerns the courts; but the moment the law is broken by a resort to violence in order to solve such problems then the courts will become involved. By their sentences the courts must make clear that violence will never be regarded as an acceptable way of dealing with personal issues.”

40.  It can be seen especially from the remarks in para 51 of Chan Chun Tat that the seriousness of the present case is greatly enhanced by the fact of domestic violence.

41.  The reasons why Mr He attacked his father on that morning are complex and have been canvassed at some length in the psychological report the details of which I will not disclose here.  Suffice it to say that there has been a historical background which led to the explosive outbursts on that day. Ultimately, the long-term solution lies in how the family will resolve its internal problems; the court could only intervene so much.

42.  If not for the objective fact that Mr He was a 16-year-old person with no previous history of violence at the time of the offence (17 now), I would have had no difficulty in imposing an immediate custodial sentence of substantial length commensurate with a starting point higher than the lower end of the spectrum of usual sentences.

43.  However, although section 109A of Cap 221 does not strictly apply, I cannot ignore the rehabilitative aspect of the principles of sentencing on a youthful offender of previous good character where the offence, though very serious, is not as heinous as for example an offence of trafficking in a dangerous drug.

44.  The rehabilitative aspect plays a larger part in the present case because the victim ie the father has gone out of his way to write a mitigation letter urging the court to give Mr He a chance to reform himself and urging the court to pass a lenient sentence so that Mr He could re-unite with the family at an earlier time.

45.  It is hoped that when Mr He has served his sentence, he will be welcomed back into the family and be nurtured with love and harmony so that not only Mr He himself will be reformed.

46.  In light of the foregoing considerations, and given Mr He’s plea of guilty showing remorse and the conclusion of the joint DC and TC Suitability report, I am satisfied that it is in the interest of the community and that, having regard to Mr He’s character and his previous conduct, and to the circumstances of the offence, it is expedient for his reformation and for the prevention of crime that he should undergo a period of training in TC.

(Mr He, please stand)

47.  I order that Mr He be sentenced to detention in a Training Centre.