DCCC636/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.636 OF 2010

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Reasons for Sentence

1.  The defendant faces one charge of wounding with intent, contrary of s.17(a) of the Offences Against the Person Ordinance, Cap.212. It is alleged that the defendant on 13^th March 2010, outside Lucky Centre, nos.165-171 Wanchai Road, Wanchai in Hong Kong, unlawfully and maliciously wounded Law Ho Yan with intent to do him grievous bodily harm.

2.  The defendant pleaded guilty, admitted to the summary of facts and was duly convicted.

Facts

3.  At around 2am on 13^th March 2010, while PW1 was walking home with friends including PW2 to PW5, upon reaching Lucky Centre, a group of 4 South Asian males including the defendant approached them. PW1 to PW5 and the 4 South Asian males were casual friends. On this occasion, the defendant talked to PW2 and 3 in an unknown language in a hostile manner. When PW1 made enquiries with the defendant, the defendant crossed the road and collected a watermelon knife from a bag carried by a female. The defendant then rushed towards PW1 and chopped PW1’s left elbow and left waist with the knife. All 4 South Asians fled after the attack.

4.  CCTV footage of Lucky Centre captured the attack.

5.  PW1 received medical attention and medical findings revealed an 8cm deep cut wound over the left elbow with left hand numbness and fracture of the left ulna.

6.  At around 1am on 20^th March 2010, PW1’s friend (PW6) who also knew the 4 South Asians males found them at Causeway Bay area. PW6 immediately informed PW1 and the Police. Shortly thereafter, PW1 and Police arrived and the defendant was arrested.

7.  In the subsequent video recorded interview, the defendant admitted that he had an argument with PW1 at the material time. Shortly thereafter he took a knife from a friend called ‘Ah Bo’ and chopped PW1. He did not notice whether his friends had chopped PW1 or not. He later discarded the knife at Wanchai seashore.

Previous

8.  The defendant has a clear record.

Mitigation

9.  The defendant is 24, born in Thailand. His father left him and his mother since the defendant was 2-3 years old. The defendant denies he has any triad background.

10.  After the defendant came to Hong Kong in 2004, having received up to primary 6 level education in Thailand, he did not continue with his education in Hong Kong.

11.  After arriving in Hong Kong, the defendant did a number of jobs but ultimately worked together with his mother and younger brother in running a barber shop. Apart from his mother and younger brother the defendant also has a grandmother in Hong Kong who is 65. Both his mother and grandmother has heart problems. The defendant admitted that he was unable to control his temper, what happened was that he had quarrel with friends of the victim and then the victim intervened. Unable to control his emotion, he tried to teach the victim a lesson.

12.  In the updated medical report of the victim dated 21^st July 2010 (P-2), up to 18^th May 2010, the fracture was healing well and elbow function recovered, I assume that there is full recovery. The defendant has also been cooperative with the Police.

Sentence

13.  The maximum sentence for a section 17 wounding charge is life imprisonment.

14.  Based on the assumption that people do not carry water melon knives around, it would appear that the defendant must have planned the attack on PW1. Upon inquiry during mitigation, the defendant still cannot offer an explanation as to why there was a melon knife in the bag that his friend was carrying.

15.  In relation to the injury suffered by the victim, the first observation is that the fracture of the left ulna of PW1 suggests that the chop on his elbow was with considerable force. In the latest medical report of the victim, more details are disclosed in relation to the wound. In relation to the elbow, there was partial cut of the extensor muscle at the elbow and minor fracture of the proximal ulna. The cut was “deep to bone”. According to the report, the fracture was fixed and the torn muscles were repaired. Follow up examination on 18^th May 2010 showed that the fracture healed well and elbow function was recovered.

16.  In the case of AG v Sin Wai Lun, Application for Review No. 22 of 1987, CAAR22/1987, the victims were attacked by a group of people with melon knives and suffered the following injuries: The first victim suffered a wound to his left wrist, which was cut to the bone. The nerve and the artery were severed and the doctor considers that there may be permanent disability. The 2^nd victim suffered a 20cm laceration of his left shoulder, which was also cut to the bone, but the prognosis is for a good recovery.

17.  The 3^rd victim suffered multiple chop wounds on his face and shoulder, his upper arm and back. The tip of his nose and upper lip were cut vertically open in a 10cm laceration. There will be no permanent disability.

18.  The defendant pleaded guilty to 3 counts of s.17 wounding. The Court of Appeal was of the view that a proper starting point should have been 3 years’ imprisonment. That was in 1987.

19.  In the case of Secretary for Justice v Hau Ping Chuen, Application for Review No. 12 of 2007, the respondent took out a knife with a 5½-inch blade and attempted to stab the victim. The victim managed to fend off two of the stabbing motions with his arms but he was cut by the knife on his abdomen.  As the victim slipped, the respondent continued to stab at him.  The victim cried for help and alerted PW2.  When PW2 rushed out of his house, he saw the respondent stabbing the victim’s left inner thigh.  The victim ran away but the respondent continued to attempt to stab at the victim until PW2 yelled: “What are you doing?”.  It was only then that the respondent stopped and ran off towards his own house.

20.  The police were summoned to the scene and the victim was taken to hospital. The respondent then surrendered himself to the police.  He admitted having stabbed the victim with a knife and claimed that he had been forced to act in this way because of what the victim had done.  He told the police where he had discarded the knife and, in due course, this knife, measuring 11 inches altogether, was found on the path leading to the respondent’s house.

21.  The victim sustained a 5 centimeter cut wound over the abdomen and a 5 centimeter cut wound on his left groin.  He was hospitalized for three days. He suffered no long-term ill effects.

22.  The Court of Appeal was referred to the decision in HKSAR v Tse Hok-lam [2005] HKLRD 344, where the usual range of sentence for wounding with intent is described as being “3 to 12 years’ imprisonment”.  “In that case, where a female victim had been attacked with a knife in the back and with a chopper on her neck and shoulders, this court reduced a starting point of 12 years to 9 years and imposed a 6-year sentence to reflect the appellant’s guilty plea having regard to the victim’s complete recovery.  We note that the court, in coming to its decision, made specific reference to the unusually low intelligence quotient of the appellant, a factor that may, in part, account for the reduction in the light of what was a vicious attack.”

23.  “Having regard to all the factors which have been brought to our attention, including a letter written by the respondent’s son, we have concluded that the least starting point which could be imposed for an offence as serious as this is 5 years.  To give effect to the respondent’s guilty plea, this must be reduced to 3 years and 4 months’ imprisonment.”

Sentence

24.  Having seen the cctv footage, I am satisfied that the attack is not what counsel Mr. Wong had described, which was that it was a momentary loss of temper and control on the defendant’s part. It can be seen from the footage that the defendant’s group approached the witnesses, talked for a minute or so, then the defendant left the group and crossed the street and came back with the melon knife. He was not even running across the road, everything he did was deliberate and controlled. I have no doubt whatsoever that the attack on the victim was premeditated.

25.  The attack was so ferocious that the cut to the victims’ elbow was deep to the bone and caused a bone fracture. Although not the worst of its kind, the injury was still serious. It is fortunate that there appears to have been a full recovery.

26.  Bearing in mind the previously clear record of the defendant and having given consideration to the cases referred to above as well as the circumstances of the attack, I find that a starting point of 4 and a half years’ imprisonment is appropriate. I will give the defendant the full one-third discount for his guilty plea and reduce that to 36 months’ imprisonment.