HKSAR v. LAW LAM YING

DCCC 676/2020

[2021] HKDC 616

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 676 OF 2020

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant pleads guilty to one charge of wounding Lok Hon Bor, contrary to section 19 of the Offences against the Person Ordinance, the maximum sentence for which is 3 years’ imprisonment[1].

2.  Full particulars of the offence are set out in the amended summary of facts admitted by the defendant on 30 April 2021[2]. Sentence was adjourned for a report on the suitability of the defendant to perform community service.

3.  In summary the defendant operated a hawker stall selling fruit near the junction of Canton Road and Shantung Street in Mong Kok.  Mr Lok also operated a hawker stall in the same area. 

4.  At around 3 p.m. on 22 April 2020 the defendant placed his trolley at the centre of the passageway outside his stall causing an obstruction.  Later the same afternoon Mr Lok and the defendant had a quarrel about the obstruction. 

5.  In the heat of the moment the defendant picked up a fruit knife from his stall and tried to stab Mr Lok once on his neck.  After the defendant and Mr Lok were separated, Mr Lok ran away. 

6.  Ms Fan, another hawker, recorded the incident with her mobile phone.  I have had the opportunity of viewing the footage.  Photographs of the location and the knife, which has a blade of about 30cm in length, have been submitted to court.

7.  At around 5:24 p.m. the same day Mr Lok attended the Kwong Wah Hospital.  A medical report has been submitted to court showing that Mr Lok sustained a cut wound of about 1cm in length over the left side of his neck; Mr Lok refused wound exploration and suture; the wound was closed with sterile strips and that Mr Lok was treated and discharged the same day.

8.  Photographs of the injury sustained by Mr Lok have been submitted to court.  Ms Lo informs the court that Mr Lok has made a full recovery.

Mitigation

9.  In passing sentence, I have carefully considered the oral and written submissions of Mr Chan, in particular that the defendant, who is 78, suffers from heart disease and has recently been diagnosed with cancer as a result of which he no longer works having handed over the operation of his fruit stall to his wife[3].

10.  I take into account that the defendant has no previous convictions. 

Sentence

11.  There are no guidelines for offences of wounding contrary to section 19 of the Offences against the Person Ordinance. 

12.  In Secretary for Justice v Hung Kar Chun the Court of Appeal said that the courts will not tolerate attacking another person with a lethal weapon such as a chopper or knife on minor provocation or while having a dispute and that in dealing with this kind of case the courts will impose more severe and deterrent sentences[4].

13.  Whilst this was said in respect of a charge of wounding with intent, contrary to section 17 of the Offences against the Person Ordinance, I am satisfied the same principle equally applies to offences contrary to section 19.

14.  Mr Chan says that the defendant acted out of impulse and under provocation as detailed in his written submission[5].   Having viewed the video footage, I accept that the defendant picked up the fruit knife to scare Mr Lok.  The defendant initially held the knife down the side of his body and only used the knife after Mr Lok had caused a basket of plums to scatter all over the floor. 

15.  Mr Chan submits that a community service order is a viable sentencing option in view of the background of the defendant and of the case[6].   I have considered the cases submitted by Mr Chan in support of this submission[7]. 

16.  In addition I have also considered HKSAR v Lee Hon Yung[8].The defendant and his friends had a drinking party in a disco when a dispute arose between the defendant and his girlfriend over a trivial matter.  In the heat of the dispute foul language was spoken and the defendant threw a glass at his girlfriend from a distance of about 5 feet.  The glass shattered and caused three lacerations on his girlfriend’s face requiring nine stitches.  The girlfriend was left with a significant scar on her forehead.   

17.  The defendant was sentenced to 3 months’ imprisonment.  On appeal the court held that the incident between friends arose spontaneously and was to be distinguished from the usual wounding cases as a result of exchanging stares from strangers on a neighbouring table for which a strong public element of deterrence was called for.  The court substituted a community service order.

18.  Having carefully considered all the circumstances of the offence including that the defendant acted impulsively; that there was a degree of provocation; the injury to Mr Lok is not the most serious and from which he has made a full recovery and that the defendant is aged 78 and has a clear record with no previous dispute with Mr Lok or any other hawker, I am satisfied this is a case appropriate for community service. 

19.  The defendant however having recently undergone heart surgery and was diagnosed with lung cancer I was concerned that in view of the defendant’s age whether he would be able to perform community service. 

20.  According to Dr Chan, Consultant Surgeon, Department of Cardiothoracic Surgery, Queen Mary Hospital, the defendant is having stable condition after treatment with good prognosis.  The defendant is therefore considered medically fit to perform community service[9].

21.  Notwithstanding the age of the defendant also presents obstacles in arranging suitable work site for the defendant, community service is recommended[10]. 

22.  Having explained a community service order to the defendant in the presence of his son and the defendant having consented to the making of a community service order, the defendant is convicted and sentenced to perform 120 hours of community service[11].