HKSAR v. LIP TIN CHI

DCCC187/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.187 OF 2010

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Reasons for Sentence

1.  The defendant was originally charged with 1 count of wounding with intent under s.17 of the Offences Against the Person Ordinance, Cap. 212. He pleaded not guilty to the charge. I found the defendant not guilty of the charge after trial, but guilty of the lesser alternative offence of wounding under s.19. The facts of the case can be found in the Reasons for Verdict and I shall not repeat them here.

2.  Prior to sentence, I was invited by counsel for the defendant to seek psychiatrists’ reports on the defendant. The reports were prepared and it is the doctors’ opinion that the defendant does not suffer from any significant mental illness and there is no need for him to receive residential treatment in a mental institution. There is a history of substance abuse and the defendant was in the habit of consuming cough syrup everyday. This is relevant in sentencing because the defendant told the doctors that on the day of the incident he also took some cough syrup. If the defendant carried on with this unfortunate habit, there is a higher likelihood of him re-offending.

Sentencing cases

3.  The maximum sentence under s.19 is that of 3 years’ imprisonment.

4.  The sentences imposed in the cases referred to in Sentencing in Hong Kong, Cross & Cheung, 5^th Edition, at page 626 range from 9 months to 3 years and 6 months’ imprisonment, but they are all far more serious in terms of the circumstances of the attack and all of them involved usage of weapons in the attack.

5.  In the case of R v Vu Van Tien, HCMA 996/1986, an inmate used an iron bar to hit the head of a fellow inmate with whom he had an argument 10 weeks before. The injury suffered was a lacerated wound over the right temple and several superficial scratch marks over the right forearm and shoulder. The appellant pleaded guilty and was sentenced to 9 months’ imprisonment.

6.  In the case of HKSAR v Yu Kam Hung, HCMA 1055/1997, the victim, who was 67, was assaulted in an apparently unprovoked attack by the appellant who was a bystander watching the victim playing a game of cards. The victim was pressed to the ground and the appellant picked up a stone and threw it at the victim's head. He picked up another stone and hit it on the victim's head and face. The victim had two 3 cm lacerations on his skull which required 19 stitches. He lost one real tooth and 4 false teeth. He had a swollen and bleeding face and spent 4 days in intensive care. The appellant had “an extremely bad record with a large number of convictions.” At trial, the appellant was first sentenced to 12 months’ imprisonment but later reduced to 9 upon review. It is Beeson J’s observation that the original sentence of 12 months should have been the correct sentence, meaning a starting point of 18 months’ imprisonment.

7.  I was also referred to the cases of HKSAR v Cheng Hung Kwong DCCC1038/2008 and HKSAR v Clifford Martin Frank, HCMA 1113/2001.

8.  There is no need to go through all the cases as it is clear that the circumstances in our present case must fall into the least serious end in terms of the ferocity of the attack, whereas the injury suffered by PW1 would go towards the higher end, as in the case of Clifford Martin Frank’s 2^nd victim.

Sentence

9.  The assault on the victim arose out of a trivial dispute concerning the defendant’s dog being unleashed. The 2 attacks on the victim were unplanned. No weapons were used in the attack. Although the force used was unlawful, it was not the most serious of its kind. The victim’s injuries however were serious. Because of his drunkenness, he was probably unable to react quickly enough to protect his head when he fell to the ground. But then the defendant had, together with another person, attacked PW1 who was in such a state and the defendant must suffer the consequences of his actions. The defendant has 5 previous convictions, but this is the first time that he had been convicted for a crime involving violence.

10.  Having considered all the circumstances, I find that a sentence of 12 months’ imprisonment after trial is the appropriate sentence.