HKSAR v CHEUNG KWUN KEUNG

DCCC 183/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 183 OF 2015

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REASONS FOR SENTENCE

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The Charge and Plea

1. The defendant Cheung Kwun Keung pleaded guilty before me to one charge of wounding with intent, contrary to Section 17 of the Offences Against the Person Ordinance, Cap 212. 

2. The offence took place on 23 January 2015, outside Lady Trench Polyclinic, Sha Tsui Road, Tsuen Wan, New Territories.  The defendant wounded the victim Mr Tang with a nail file.

The Facts

3. Mr Tang, aged 44, was acquainted with the defendant three years ago when they were both receiving methadone treatment at the clinic in question.

4. On 23 January, at about 6.55 am, Mr Tang arrived outside the clinic waiting for it to open.  After about five minutes, the defendant approached Mr Tang and stabbed him once on his collarbone and once on his left chest with a sharp object. 

5. Mr Tang immediately turned around and tried to leave.  He was further stabbed on his back and cut on his right vertex of his head.  Mr Leung, a passer-by, separated the defendant and Mr Tang.  The defendant then escaped from the scene. 

6. Mr Tang had started to bleed, and Mr Leung tried to assist Mr Tang to stop the bleeding.  Mr Tang then left to seek medical treatment.  He felt dizzy when he walked past a convenience store at No 73 Chuen Lung Street and he thus sat down for a rest.  The staff of the convenience store saw Mr Tang and reported the case to the police. 

7. Mr Tang was sent to hospital for medical treatment.  Medical examination on Mr Tang shows that he suffered the following injuries:-

(a) two 5 mm long penetrating wounds at left shoulder and left chest respectively;

(b) a 1 cm long penetrating wound at left back; and

(c) a 3 cm long frontal scalp penetrating wound.

8. Mr Tang was admitted to the intensive care unit of Princess Margaret Hospital on 23 January 2015, and was discharged from hospital on 25 January 2015. 

9. The defendant was arrested at about 3.30 pm on 23 January 2015 at his residence.  Under caution, the defendant said he committed the offence as he was pressed by the victim. 

10. In the video-recorded interview conducted later in the afternoon, the defendant stated, under caution, inter alia, the following:-

(a) the defendant became acquainted with Mr Tang more than one year ago when they were at the clinic. About one month ago, Mr Tang borrowed $1,000 from the defendant but failed to repay the loan;

(b) at about 6.25 am, on 23 January 2015, the defendant arrived outside the clinic to wait for methadone treatment. At around 6.45 am, Mr Tang also arrived, and the defendant asked Mr Tang for repayment. As Mr Tang’s attitude was bad, he had no intention to repay the loan, the defendant felt very angry. He took out a nail clipper about 2½ inches in length and used its nail file to stab Mr Tang for several times;

(c) the attack on Mr Tang lasted for about five seconds;

(d) Mr Tang’s head bled after the attack; and

(e) the defendant then escaped. He had discarded the nail clipper.

11. At an identification parade held on 28 January 2015, Mr Tang and Mr Leung positively identified the defendant as the one who attacked Mr Tang on 23 January 2015.

Criminal Record

12. The defendant had 22 previous convictions, including one aggravated robbery, three possession of offensive weapon and three wounding or inflicting grievous bodily harm contrary to Section 19 of Cap 212.

Background Information

13. The defendant is now 60 years old.  He resided with his wife before his remand.  Both unemployed, they depend on comprehensive social security assistance for their living.  He is a drug addict.

Mitigation

14. I am grateful to Mr Lam for his detailed written mitigation.  Mr Lam submitted that the offence was not premeditated, the defendant wounded the victim in the heat of the moment after he was scolded by the victim.  What the defendant did was wrong, but there was an element of provocation, Mr Lam submitted. 

15. I pointed out to Mr Lam the facts admitted by the defendant show that the defendant started to attack the victim as soon as he appeared at the scene.  He continued to attack the victim when the victim tried to leave. After taking instructions from the defendant, Mr Lam told me he would no longer seek to argue that the attack on Mr Tang was sparked by provocation.

16. Mr Lam submitted that the injuries sustained by Mr Tang were not as serious as those that can be inflicted by knife or chopper.  Mr Lam submitted that the defendant pleaded guilty to the offence at the first available opportunity and is remorseful, hence he deserved the full discount for his guilty plea.

17. Mr Lam drew my attention to three cases.  They are:-

(a) Attorney General v Lam Yat Sing CAAR 14/1992;

(b) HKSAR v Lo Ka Chun [2014] HKCU 622; and

(c) 香港特別行政區 訴 梁英明 DCCC 1250 & 1260/2011.

18. Mr Lam cited Lam Yat Sing for the general principle that offences contrary to Section 17 of the Offences Against the Person Ordinance, Cap 212, are committed in a wide range of circumstances, and there appears to be no guideline sentence.  Fuad VP remarked in Lam Yat Sing that:-

“Everything will depend so heavily on the particular facts of each case. Sentences between 3 to 12 years are the norm.”

19. Mr Lam used Lo Ka Chun and 梁英明 as comparables.  He submitted that as the offence was not pre-meditated, and the weapon used and the injuries sustained by Mr Tang are of a less serious nature than those in Lo Ka Chun and 梁英明, I should depart from the usual starting point of 3 to 12 years and adopt a starting point of under 2 years’ imprisonment.

20. Mr Lam submitted a mitigation letter written by the defendant in which the defendant expressed his regret and tendered his apology to the victim.

Discussions

21. I have considered the facts of this case, the background information of the defendant and all the matters urged on the defendant’s behalf by Mr Lam.

22. As Mr Lam rightly pointed out, there is no tariff for wounding with intent, as everything will depend heavily on the particular facts of each case.

23. In my judgment, the instant case is a serious case of wounding with intent.  The defendant attacked an armless victim with a nail file.  It is true that the weapon used by the defendant is not as lethal as a knife or chopper and the victim suffered no permanent injury in the end.  I accept Mr Lam’s submission that the four wounds on the victim are not as serious as those that can be inflicted by knife or chopper.  Nevertheless, vicious and violent attack of this nature calls for a lengthy prison term.  Although I am persuaded that in the present case, I should depart from the usual starting point of 3 to 12 years, a starting point of under 2 years’ imprisonment as suggested by Mr Lam simply cannot reflect the seriousness of the attack.  After all, a weapon was used and four penetrating wounds were sustained by the victim. 

24. On the facts before me, a starting point of 2½ years’ imprisonment is appropriate.

25. The defendant had one previous for aggravated robbery, three for wounding 19, and three for possession for possession of offensive weapon.  It seems to me the defendant is a man who is prone to violence.  In my judgment, the defendant is a persistent offender as far as violence-related offences are concerned.  The previous sentences failed to deter the defendant from reoffending.  In my judgment, the starting point in the present case should be enhanced, not for any previous offences which the defendant had already served the sentences, but to deter the defendant from reoffending, so that the public would be duly protected.

26. In the present case, bearing in mind the seriousness of the offence, the background of the defendant and the need to protect the public, an enhancement of 3 months is appropriate (HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, [1999] 3 HKC 848).

27. The defendant is entitled to one-third reduction for his guilty plea.

28. For the reasons given, I sentence the defendant to 22 months’ imprisonment.