HKSAR v. YEUNG KA WAI

DCCC 224/2018

[2018] HKDC 965

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 224 OF 2018

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a single charge of wounding with intent, contrary to section 17(a), Cap 212.

2.  The offence was committed on 15 January this year, 2018.  The defendant and the victim are known to each other.  The defendant had carried out renovation work at the home of the victim and they had a dispute arising out of that and there was seen to be bad feeling, probably on both sides, but certainly on the defendant’s side.

3.  In the evening, about 5.28 pm, the defendant approached the victim from behind and hit him on the left temple and back of the head with a crowbar.  He hit him twice on the head and once on the neck. It caused bleeding, and the defendant ran off.

4.  The victim was sent to Princess Margaret Hospital.  He had lacerations on his left face and occipital and was hospitalised for three days.  He was released after three days.

5.  The defendant made admissions under caution straight away.  He said they had had grudges for a number of years.  He had actually gone and bought a crowbar and then hit the victim from behind, so there is certainly an element of premeditation, based on his admission.

6.  The defendant is a man of clear record.  He is 57 years old; been unemployed, he says, since 2000.  He is married and claims CSSA; has two grown-up sons; lives with his wife.

7.  Relevant to today’s sentencing is the fact the defendant suffers from epilepsy.  I have a report on that dated 9 July of this year.  He was diagnosed in 1992 with that condition.  He has remained seizure free since 2013.  Besides the epilepsy, which is controlled with drugs, he has some reflux problem, hand tremor, and recently he has fractured his right fibula in a fall, so at present he has quite a bit of medication to take.

8.  Dealing with the victim’s medical condition, as the facts have indicated, he was taken to hospital and was there for three days.  There was a 3-centimetre laceration of the scalp and another one on the left face which was treated.  There was also what is described as a fracture over the left zygomatic arch.  It is being what is described as conservatively managed, which effectively means there is no real operative treatment for it. It did not delay the departure from hospital.  A more recent report in March of 2018 describes this as a comminuted    fracture to the left zygomatic arch, and there is what is described as a loss of left zygomatic prominence.  We are talking about the area on the extreme left of the body behind the cheekbone, as it were, and the jaw.  It says everything was within normal range and the bone is firm, the maxilla was    firm, but there was observed to be what is described as     facial asymmetry and again conservative management was advised.  So it would appear no further treatment can be given and other than some what is described as facial asymmetry, there is no ongoing damage or injury as a result of this incident.

9.  The mitigating factors that were put forward are the defendant’s early plea of guilty, his clear record, his medical condition - he has some challenges medically, certainly around his epilepsy - and also the fact that the victim appears to have no ongoing medical problems, and by the standards of this offence, which is the more serious offence under 17(a), the injuries received are relatively minor.

10.  It is accepted that there is no actual guideline, but sentences for this offence range within the range of 3 to 12 years’ imprisonment.  Mr Ching for the defendant has very helpfully provided me with some cases, but of course in these cases they all very much turn on their own facts.  I would observe that all the cases that have been brought before me are offences where a knife has been used, and generally, starting points are higher for those offences than they would be where a blunt object such as a crowbar is used.

11.  Of some assistance is the case of Yeung Kam Kwai CACC 458/2007 where the defendant in that case had a similar medical condition to the defendant in this case, where the Court of Appeal effectively reduced the sentence by up to 7 months as a result of the defendant’s medical condition, where he suffered from epilepsy in much the same way as this defendant.

12.  What I shall do first is determine the starting point for sentence and determine what weighting should be given for the defendant’s medical condition, and then deduct one‑third from that for his plea of guilty.

13.  The attack itself clearly was premeditated.  The use of a crowbar could cause very serious injuries.  It was certainly wielded with enough force to cause a fracture.  Fortunately for the defendant, the injuries were not as serious as they might have been, and the victim has made what could be described as a full recovery.

14.  The offence would appear to be out of character for the defendant.  He is 57 years old.  He has never had any convictions before.  This is not an attack with a bladed object, which could have caused very serious injury.

15.  I am going to take a starting point for sentence on this case of 30 months’ imprisonment.  I think there should be some weighting for the defendant’s medical condition, but it does seem well-controlled, from the evidence I have.  I shall in fact reduce the starting point to 27 months’ imprisonment as a result of that factor.  The defendant is entitled to a one‑third discount from that figure.

16.  That would lead to a final sentence of 18 months’ imprisonment, and that is the sentence I will impose.