HKSAR v. NG TUNG MO

DCCC 618/2020

[2021] HKDC 698

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 618 OF 2020

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REASONS FOR SENTENCE

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1.  Mr Ng 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.

2.  The particulars are that he, on 4 April 2020, at Room 3609, Heng Fai House, Tin Heng Estate, Tin Shui Wai, New Territories, in Hong Kong, unlawfully and maliciously wounded Cai Xiaofeng with intent to do her grievous bodily harm.

Facts admitted by Mr Ng

3.  Mr Ng (“Ng”) and the wounded person Ms Cai (“Cai”) were married in 2013 and they lived in the offence place.

4.  On 4 April 2020, at about 0115 hrs, Cai returned home after work.  Ng asked if she was leaving him. Cai asked Ng not to think too much.  Ng suddenly grabbed Cai’s neck with his hands from the front.  Ng also punched her in the chest a couple of times.  Cai rushed into the toilet and locked the door and sent WeChat messages to her friend telling her to report to the police.  Ng sweet-talked Cai into unlocking herself and coming back out into the living room.  Ng then grabbed a hammer from near the front door and struck Cai’s head with it for 5 to 6 times.  Cai yelled for help and eventually managed to flee to a neighbour’s toilet and hid herself there.  Her face was full of blood.

5.  Shortly after 0147 hours, police arrived at the offence place and intercepted Ng.  Ng told the police Cai was having an affair with another man and would be moving to live with him; he therefore asked Cai to return $300,000 to him; an argument broke out and he struck Cai with a hammer.  Ng was arrested for Wounding.

6.  Cai was examined and the doctors made the following findings:-

(a) 1 cm laceration over left scalp;

(b) Cortical buckling at left 5^th rib which could represent fracture;

(c) Swelling and tenderness over left scalp; and

(d) Tenderness over left face and chest.

7.  Ng now admits that he unlawful and maliciously wounded Cai with intent to do her grievous bodily harm.

Criminal record

8.  Mr Ng has 5 previous convictions the last of which was for manslaughter for which he was sentenced to 8 years’ imprisonment in 2007.

Antecedents

9.  Mr Ng is aged 70 (69 at the time of the offence), educated to primary level in the Mainland, was working as a cleaner.  He has been suffering from delusional disorder since 2014 and he was an outpatient of Castle Peak Hospital.  He was divorced with his first wife in 1979 and married his second wife in 1985.  He killed his second wife in 2006.  He married his third wife (Ms Cai) in 2013.  Mr Ng has one son and one daughter by his first wife; and one son and three daughters by his deceased second wife.

Psychological report

10.  On 18 May 2021, the court asked for a psychological report on Mr Ng. What came back was a report dated 1 June 2021 under the hand of a Clinical Psychologist of CSD.  It is a fairly long report.  Suffice here to state a small part of the “Conclusion and Recommendation” section as below:-

“18. … He had a prior conviction of manslaughter, with the victim being his second wife. Both his previous and current offences could be regarded as violent outbursts caused by intense pent-up emotions arising from marital problems. He has no significant violent tendency; his violence seems to be directed specifically toward his spouse, and only when he is greatly distressed by marital conflicts… He has poor insight into his weakness and also lacks awareness of the importance of avoiding high-risk situations (i.e. marital conflicts). His risk of violent re-offending is moderate.”

11.  Of relevance to his re-offending risk is that “[h]is wife has recently filed for divorce, but he has refused to divorce her.  He explained that he still wanted to get his money back from her.  He planned to look for his wife, who is currently in China, after discharge.” (extracted from para 12 of the report)

Mitigation

12.  Mr Roy Lau of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Ng.

13.  The following is a summary of the mitigation submissions.

14.  When Mr Ng was admitted to Tin Shui Wai Hospital on 4 April 2020, the complaint was unstable emotion. (Medical Report dated 15 October 2020 submitted).

15.  An updated psychiatric report obtained by the instructing solicitors dated 3 November 2020 (submitted) reveals:-

(a) Mr Ng was known to the mental health service since 2014 when he was admitted to Castle Peak Hospital from 22 February to 23 May 2014; he was found to have morbid jealousy and paranoid ideas towards his wife and (her colleagues); he was diagnosed to have delusional disorder and harmful use of alcohol; after treatments, he was not noted to have any psychotic symptoms when last seen at TMMHC on 17 March 2020 (shortly before the offence date);

(b) Mr Ng reported his wife had admitted to having extra-marital affair with her supervisor at work in October 2019;

(c) Mr Ng’s relationship with his wife worsened after his wife refused to give him back half of his investment in the Mainland ($600,000 in total) several months before the date of the offence;

(d) During his remand at Siu Lam, Mr Ng’s mental state remained stable and he had no plans to contact his wife after his release and accepted that it was unlikely for his wife to return his investment money to him;

(e) On the date of the offence, Mr Ng suspected his wife intended to move out as she had packed her clothes; Mr Ng also claimed his wife had taken all of his cash from his drawer; he requested she gave back the money he had given her to invest in the Mainland; they got into a fight when she refused to give back any money and they both fell down during the struggle; the wife then locked herself inside the toilet; and

(f) The Psychiatrist opined that Mr Ng did not suffer from relapse of his condition at the time of the offence; that Mr Ng did not require compulsory inpatient treatment and is mentally fit to plead.

16.  Mr Lau submitted that the court is not required to obtain any further psychiatric report for the purpose of sentencing.

17.  Mr Lau invited the court to peruse the photos of the hammer and the wife’s injuries in the prosecution’s photo album (submitted by the prosecution).

18.  The wife was 48 at the time of the offence.  As regards her injuries, there were bruises and lacerations near the eye corner.  There were also bruises in the left shoulder, left abdomen, left arm, and left thigh.  Mr Lau submitted that the injuries are not expected to cause any permanent disability.  The buckling of the 5^th rib was caused by the punch. Mr Lau also invited the court to read the wife’s two medical reports (copy submitted by the prosecution).

19.  Mr Lau submitted that Mr Ng committed the offence out of his sudden loss of control due to the wife (i) taking all the cash; (ii) packing her clothes which suggested she was moving out; and (iii) refusing to return half of the money that Mr Ng passed to her for investment.

20.  Mr Lau further submitted that Mr Ng in his old age and without his children by his side considered the wife’s company very important thus leading to his anger, jealousy and loss of control.

21.  The court is invited to find that it was not a premeditated attack. Instead, it is more a breakdown in Mr Ng’s self-control based on what he said and perceived at the time of the offence.

22.  Mr Lau referred to HKSAR v Chan Chun Tat, CACC  317/2012, for general principles of sentencing in this type of case.  Mr Lau also referred to HKSAR v Fan Tak Wan, CACC 10/2007, and HKSAR v Chen Jinhui, CACC 325/2017, for sentence comparison purpose.

23.  Mr Lau invited the court to adopt a starting point of 4½ years or less and give the full 1/3 discount to Mr Ng.

24.  Upon enquiry by the court, Mr Lau explained that this is not a typical domestic violence case for the reasons that to amount to one, there has to be one or more of the following elements:-

(a) History of arguments;

(b) History of violence;

(c) Disputes about ways of bringing up children;

(d) Economic hardship; and

(e) Alcohol abuse.

25.  Again upon enquiry by the court, Mr Lau submitted that the wife has moved out of the matrimonial home and is currently living with another man; that there will be no way the couple will see each other again.  It was also submitted that there is little chance of re-offending vis-à-vis another woman because Mr Ng no longer has money and therefore is unlikely to be able to find another wife.

26.  For reference, Mr Lau also handed up the Reasons for Judgment (CACC 125/2007) of Mr Ng’s unsuccessful application for leave to appeal against a sentence of 8 years’ imprisonment after plea for the manslaughter of his second wife.

27.  Regarding the psychologist’s report, Mr Ng agreed the contents but wished to clarify what he said about denying he had struck his wife with the hammer: apparently what he meant was he had not used the hammer on the torso of his wife.

28.  With the benefit of the psychologist’s report, Mr Lau further submitted that despite what was said in the report, Mr Ng would not now seek to look for his wife after release from prison for whatever reason and he would not seek another partner given his age.

Sentence

29.  I have considered all the mitigation submissions.  I must say I take the submission that Mr Ng will not now chase after his wife for the money with a pinch of salt.  What he has clearly told the psychologist was that he will oppose the divorce petition and he wants to get his money back from his wife.

30.  When sentencing, I take into account the senior years of Mr Ng.

31.  I do not accept that to qualify as a typical domestic violence case, a case has to have one or more of the elements highlighted by Mr Lau.  Common sense dictates that the present case is a domestic violence case.

32.  I found the Court of Appeal authority of Chan Chun Tat useful. The same cannot be said however for the two other cases cited by Mr Lau because the facts of each case and the circumstances of each defendant are so different from the next that a blunt comparison is rarely of benefit to the sentencing court in this type of case.

33.  There are various passages within Chan Cun Tat which I found applicable.  Para 30 mentions that the Court of Appeal has said that the usual range of sentence for this offence is 3-12 years’ imprisonment; that each case is different and the gravity of the offence will depend on the facts of its commission.  Para 33 suggested that a typical type of domestic violence incident was where an angry argument escalates out of control and one party resorts to violence.  Para 40 spoke of one way in which the severity of the assaults may be assessed and that is the seriousness with which a defendant pressed home his attacks.  Para 44 again reminds us that the Court of Appeal has said on innumerable occasions that the sentences for this offence are very much case and fact specific and hence the wide range of 3-12 years for the usual type of wounding with intent; that although cases attracting a starting point towards the top of this range will often be cases involving severe injuries and/or severe residual disabilities it cannot be said that only cases with these features are appropriate candidates for such a high starting point. (my emphases)

34.  Paras 45 to 51 are worth reproducing in full, as follows:-

“45. Consequently, we are of the view that little is to be gained in embarking upon a comparative analysis of other cases. We believe it is more helpful to identify the relevant sentencing principles and by properly applying them [to] arrive at a just sentence. The starting point for this is an examination of the offence itself.

46. The reason that offences contrary to section 17 are serious is because they are committed with the intention of inflicting grievous bodily harm on the victim. In helping the lay person to understand what this legal phrase means the courts have said that it means not just serious bodily harm but “really serious bodily harm”, laying emphasis on the qualifying word “really”[.] It must be remembered that an intent to inflict this level of harm will have the consequence, should the victim die from the assault, of rendering the assailant liable to conviction for murder. In upholding the grievous bodily harm rule as a basis of liability for murder the Court of Final Appeal in Lau Cheong & Anor v HKSAR (2002) 5 HKCFAR 415 made the important point that an assailant intending to inflict this level of harm may not be able to control the consequences to the victim. At page 437 C - D it said:

“A person may not subjectively intend or even foresee that he will cause death. He may desire to limit the consequences of his actions to the infliction of grievous bodily injury. However, as a matter of commonsense it is impossible to predict that the consequences of an intentional infliction of really serious bodily harm will necessarily be successfully limited and will not prove to be life threatening.” (my emphasis)

47. It is hardly surprising, therefore, that the offence is regarded as such a serious one. Indeed, the fact that the usual range of sentence is 3 - 12 years’ imprisonment reflects that very seriousness. For this range indicates that not only will imprisonment usually be the norm but also that the minimum period of imprisonment will usually be 3 years.

48. Thus in determining the gravity of the offence, the factor of primary importance is the intent of the assailant to cause the victim really serious bodily harm. Whether that intent was fully realized in the injuries sought to be inflicted has been said to be of “secondary significance”. That must be so for, as the Court of Final Appeal pointed out in the Lau Cheong case, the consequences to the victim may not be as the assailant intended. Tragically, they may be worse, but even when they are not or they are not as bad as the assailant hoped to achieve that may not lessen the gravity of the offence. For the failure of the offender to achieve the level of harm he intended may be due to resistance by the victim, the intervention of others, speedy medical attention or purely unanticipated fortuitous circumstances. That is why, even though the consequences to the victim will always be an important factor, the gravity of the offence lies in the deliberate resort to violence with the intent by the offender to inflict by such violence really serious harm on the victim.

49. Consequently, many of the factors to which a court will have regard in determining the gravity of a section 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 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.

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.” (my emphases)

35.  Back to the present case, I note the following pertinent features in it:-

(a) There was marital discord between husband and wife which led Mr Ng to suspect that his wife was about to leave him;

(b) Mr Ng started the violence on the night (early morning) in question by grabbing his wife’s neck with both hands;

(c) The violence escalated by Mr Ng punching his wife in the chest two to three times (resulting in fracture of the 5^th rib);

(d) After his wife has locked herself into the toilet to avoid further attacks, Mr Ng lured his wife to open the door by deception;

(e) Thereafter and without any provocation from his wife, Mr Ng fetched a hammer from nearby and struck her head for 5 to 6 times resulting in the head injuries and extensive bleeding;

(f) The wife struggled and managed to escape and hid herself in a neighbour’s toilet;

(g) Upon police enquiries at the scene, Mr Ng said that his wife was having an affair and would be living with another man so he asked her to return $300,000 to him which led to an argument and he struck her with a hammer;

(h) Although the wife’s injuries were fortunately not very serious compared with those in some other cases, Mr Ng’s intent to cause her really serious bodily harm by the use of hammer on head is readily apparent; and

(i) The use of hammer on head cannot be viewed in isolation but has to be seen in light of the fact that in 2006, Mr Ng killed his 2^nd wife at home by hammering her head under similar surrounding circumstances which action caused four skull fractures in the deceased (the jury returned a verdict of manslaughter on the ground of provocation on an indictment for murder).

36.  In view of these startling features, and in order to show the abhorrence of the community towards this repetition of similar domestic violent behaviour by Mr Ng, and to deter Mr Ng from re-offending against his current wife and/or any future partner and to protect her/them from him, I consider a starting point near the top of the jurisdictional limit of the District Court may be apt in his case.  I shall adopt a starting point of 6 years’ imprisonment.

37.  Mr Ng pleaded guilty to the charge in good time and so is entitled to a 1/3 discount.  I cannot see any other mitigating factors which could earn him any further reduction.

(Mr Ng, please stand)

38.  Mr Ng will go to prison for 4 years.