HKSAR v. MAZIEMKE GING SHENG

DCCC 709/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 709 OF 2015

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Reasons for Sentence

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1.  The defendant pleaded guilty to one offence of wounding, contrary to section 19 of the Offences against the Person Ordinance, one offence of kidnapping, contrary to the common law and the Criminal Procedure Ordinance, an offence of common assault, an offence of criminal intimidation and also failing to surrender to custody. And the details of these offences are contained in the Summary of Facts and the defendant has agreed.

2.  The first two charges arise out of what is described as the first incident which is in mid-December 2014.  The victim who is PW1 developed an intimate relationship with the defendant in July of 2013. By late 2014 she decided to effect a separation.

3.  And at some point in mid-December 2014, she took a taxi to work at Tai Mong Tsai San Tsuen, Sai Kung.  The defendant appeared and boarded the taxi and put his arm around her neck.  There was a struggle and he punched her in the face.  The victim was wearing glasses and her nose was cut as a result of the punch.  And the cut that she received constitutes the wounding in question here.

4.  The kidnapping offence follows on the back of that offence that the defendant dragged her off the taxi into a nearby white van.  She was then detained on a hillside nearby for several hours in the van where there were discussions about their relationship.  She was eventually released. 

5.  After that incident, there was no contact between the victim and the defendant, but there was a reconciliation in February 2015.  By May 2015, the victim had decided to effect another separation from the defendant.  And this led to the 4th and 6th charges of assault and criminal intimidation which occurred in the early hours of 14 to 15 May 2015 respectively, and again results out of the defendant wanting to talk to the victim about restoring their relationship.  There was conversation.  And during the course of that, the defendant lost his temper and grabbed the victim’s neck.  She said she had difficulty breathing. 

6.  And then in the early hours of the next morning, 15 May, telephone calls by the defendant to the victim, again about their relationship.  Various threats were made which appeared to be threats to kill and they are particularised in the facts.

7.  Finally, the defendant, the last charge, the 7th charge, the defendant was to surrender to custody on 26 January 2016 for trial in the District Court on these charges.  He failed to attend.  A warrant of arrest was issued.  He surrendered himself to the police on 19 April 2016, and he had been hiding away from 26 January to 19 April. 

8.  Those facts have all been accepted by the defendant. 

9.  The defendant’s antecedents are also agreed.  He has one previous conviction in relation to possession of, purposes of trade or business, of infringing copies back in 1995 when he received a fine.   It has no relevance in sentencing to the facts or issues raised by this case.

10.  Because of the nature of the offences, I have obtained reports on the defendant.  Of relevance would be the psychological report and also the background report. 

11.  The defendant is in fact 41-year-old, he is a man, a male, 41-year-old male.  He has a daughter aged 8.  She is living in Hong Kong.  The defendant has a somewhat varied past.  At an early age he was entrusted to the care and supervision of his grandparents.  He completed primary education in Hong Kong, went to his father in Taiwan.  He was eventually adopted by a paternal aunt and her husband and lived with them in Germany for a number of years.  He eventually came back to Hong Kong for, it is described, for the sake of his paternal aunt.  He has had various odd jobs, at least two periods of cohabitations.  He has lost a son, unfortunately.  And this was the third cohabitation with this victim. 

12.  The defendant had some history of obtaining treatment for various illnesses.  But I am sure there is no psychiatric condition that is relevant to his present sentencing.  He has no psychiatric disorder.  The psychologist described him as needing anger management.  He says he has poor anger management and lack of insight and is impulsive and has difficulty with intimate relationships.  And, clearly, this array of offences is illustrative of those problems. 

13.  I turn to the question of sentencing.  The defendant faces a number of serious charges such as wounding and kidnapping. The court of course cannot lose sight of the background of the offences when considering sentence.  The background being that the offences arise out of a relationship, an intimate relationship.  And whatever the defendant might have done or said, I do note that after the incident in December that the victim effected a reconciliation.  Nevertheless, these are serious offences. 

14.  In respect of the 1st charge and also the 2nd charge, there is no guideline sentencing for these offences.  The facts that can trigger these charges are very varied and it would be difficult to set out any clear guideline. 

15.  I deal with the appropriate approach to sentencing.  Clearly, in this case as a result of these incidents that a sentence of imprisonment will have to be imposed for these charges.

16.  Looking at the 1st charge of wounding, this arises out of a cut that was received to the victim after a punch.  By 20 December when she sought treatment, the diagnosis was simply tenderness and abrasion; again it is an incident arising out of an intimate relationship, undue force was used that led to a cut.  I take a sentence of imprisonment is appropriate having regard to what later transpired in the case.  I shall take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.

17.  Turning to the 2nd charge of kidnapping, a much more serious offence.  Again, there is no clear guideline or authority as to how this should be approached.  Clearly, there would be a number of potential aggravating factors in a case such as this like seeking a ransom or the use of stupefying drugs or excessive violence. 

18.  I have been referred to some English cases such as The Crown v, I think, Dzokamshure [2009] 1 Cr App R, page 112.   And that concerned a kidnapping arising out of an emotional relationship.  In Dzokamshure, the defendant had travelled to the victim’s home and made an unannounced visit, smashed the window, punched the victim, dragged her out of the house and forced her into a car and then eventually allowed her to leave once they got to a motorway.  Minor injuries were sustained to the face and head.  The defendant was a person of good character, pleaded guilty.  In the event he was sentenced, after his plea of guilty, to 18 months’ imprisonment.  The court said the offence could not come within the expression of family tiff or lovers’ dispute, no doubt because of the level of violence used and also the fact that the victim was not free to leave.

19.  The facts of this case are very similar to Dzokamshure, except that the acts of violence preceded the kidnapping in this case is charged separately in Charge 1.  Dzokamshure appears to have a positive starting point of 27 months’ imprisonment.  No doubt without the acts of violence, the starting point would have been lower. 

20.  In this case having regard to the nature of this particular kidnapping, I will take a starting point of 24 months’ imprisonment, reduce that to 16 months for the defendant’s plea of guilty. 

21.  I turn now to the other offences, that is Charges 4 and 6.  Again these arise out of another attempt to reconciliation during which undue force and intemperate language were used of such a nature as to lead to criminality.  In respect of each of these charges, I will take a starting point of one and a half months’ imprisonment, reduce that to one month’s imprisonment for the defendant’s plea of guilty, that is on each, 4 and 6.

22.  I turn now to the 7th charge of the defendant’s going on a run.  He was in that state for only three months.  In mitigation, he said that he did not want to lose the company of his daughter and was afraid of going to prison.  This mitigation does not excuse an offence of this nature which is all the more serious when the question of a trial may arise.  In mitigation, the defendant was hiding for a fairly short period and also surrendered himself later to custody.  I shall take a starting point of 6 months’ imprisonment, reduce that to 4 months’ imprisonment for the defendant’s plea of guilty. 

23.  I now have to consider the question of overall totality.  The sentences on these offences represent separate and identifiable offences can all be served consecutively.  To do that however would lead to what I believe would be an excessive sentence.  I shall achieve what I consider to be the correct sentence for this overall period of offending as follows.

24.  Charges 1 and 2 represent the kidnapping in which violence was used against the victim.   I consider a correct overall omnibus figure for those two charges should be one of 18 months’ imprisonment. I shall accordingly order that Charges 1 and 2 be served consecutively to each other.  Charges 4 and 6 again represent another episode of criminality, and I consider that they should be served concurrently however, but should be served consecutively to Charges 1 and 2.  Charge 7 is again a separate incident where the defendant failed to attend this trial.  Having regard to the question of overall totality, I shall order as follows that 2 months of that sentence run consecutively to Charges 1, 2, 4 and 6 and the balance concurrently.  This will lead to an overall total sentence of 21 months’ imprisonment for all these charges.