HKSAR v. KO ALEXANDER MING-CHE

DCCC 335/2023

[2023] HKDC 1541

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 335 OF 2023

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REASONS FOR SENTENCE

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Introduction

1.  The defendant was convicted upon his own guilty plea of one charge of wounding, contrary to section 19 of the Offences against the Person Ordinance, Cap. 212.

Facts

2.  The Korean victim Mr Cho (“PW1”)  and the defendant were unacquainted before this incident. On the other hand, PW1 was a friend of Mr Tse (“PW2”).

3.  At about 9:30 am on 25 June 2022, PW1 and PW2 joined a boat party on a yacht (the “Yacht”)  in Sai Kung. The defendant was also at that boat party. The Yacht sailed to Kau Sai Chau and the participants of the boat party consumed alcohols.

4.  At about 2 pm on the same day, PW1 had a casual chat with the defendant on the Yacht.

5.  At about 4 pm, PW1 fell asleep on a couch on the Yacht.

6.  At about 6 pm, the Yacht berthed at Sai Kung New Public Pier. The defendant woke PW1 by grabbing his face and touching his body. The defendant asked PW1 to drink and said Koreans could drink. PW1 ignored the defendant and tried to get back to sleep. However, the defendant kept disturbing PW1 and got close to him. PW1 tried to push the defendant away to keep a distance from the defendant. The defendant then slapped PW1’s face. PW1 tried to stop the defendant but the defendant tackled PW1 thus making PW1 fall onto the floor. PW1 then restrained the defendant’s upper body with his right hand. At that point, PW2 and other people separated them.

7.  About 2 to 3 minutes later, the defendant who was then at the other end of the Yacht took an unopened wine bottle (the “Bottle”)  and approached PW1 from behind. The defendant smashed PW1’s head with the Bottle. As a result, the Bottle shattered and PW1’s head bled.

8.  The defendant alighted from the Yacht after the attack.

9.  PW1 went home afterwards. On 26 June 2022, PW1 still felt pain on the head. He therefore went to the hospital for treatment and reported the case to the police there.

10.  Medical examination showed that PW1 suffered a 3 cm wound at the scalp with surrounding erythema and tenderness, and minor abrasions at the right foot and lower leg. He was discharged on the same day after treatment.

The defendant’s background and previous criminal record

11.  The defendant was born in October 1988 and is now 35. He is married with a 5-year-old daughter. He has been working as a beverage development manager since October 2018 earning about $40,000 a month.

12.  Prior to commission of the present offence, the defendant had one previous conviction of wounding or inflicting grievous bodily harm under section 19 of the Offences against the Person Ordinance, Cap.212. As a result of that conviction, a 120-hour community service order was imposed on him in February 2017.

Mitigation

13.  The gist of Mr So’s written “Submission of mitigations on behalf of the defendant” is as follows:

(i)  The defendant pleaded guilty and therefore was entitled to 1/3 discount in sentence;

(ii)  The defendant was willing to pay compensation to PW1;

(iii)  The defendant committed the present offence under the influence of alcohol. He has since received counselling from St John’s Cathedral Counselling Service since July 2022; and

(iv)  The defendant made a donation with another person in the total sum of HK$10,000 to a charitable organization called Sons & Daughters in April 2023, and acted as a voluntary bartender at Mother’s Choice Gala Dinner 2023.

Three mitigation letters respectively from the defendant himself, his wife and his employer were submitted to the court asking for leniency. The defendant’s curriculum vitae were also submitted. It was stated in the defendant’s and his wife’s letters that the defendant was a man of short temper.

Sentence

14.  The maximum sentence for the offence of wounding is 3 years’ imprisonment. There are no tariffs or sentencing guidelines for the offence of wounding. The facts of wounding cases are different from each other. Whether a particular sentence is appropriate depends on all the circumstances of that particular case. 

15.  In HKSAR v Lai Hing Wan (黎慶雲) CACC 363/2007, the applicant attacked the victim’s head a number of times with a glass bottle at a basketball court. He did not stop the attack despite the glass bottle had been broken. Three other young persons also punched and kicked the victim. The victim suffered scalp and ear abrasions and tenderness on his upper back, but had no bone fracture. He was discharged after treatment. It was believed that the victim was attacked because he had kept contacting his ex-girlfriend, causing her new boyfriend jealous. In light of the applicant’s previous convictions involving use of violence, triad related offence, robbery and theft, the Court of Appeal was of the view that the starting point of 24 months’ imprisonment not manifestly excessive. The Court of Appeal said that they did not accept the attack was not premeditated, that it was sheer luck that the victim’s injuries were not serious, and that the applicant’s violent conduct could have led to extremely serious consequences.

16.  In HKSAR v Chan Ka Wah (陳嘉華) CACC 74/2011, the applicant was convicted after trial of one charge of burglary (Charge 1)  and one charge of wounding (Charge 2). He was sentenced to 42 months’ imprisonment for Charge 1 and 27 months’ imprisonment for Charge 2. The trial judge ordered 12 months from Charge 2 to run consecutively with 42 months in Charge 1, making a total of 54 months’ imprisonment. Charge 2 took place during the course of Charge 1. The facts of that case were that at around 2 am on the offence date, the victim returned home and chanced upon the applicant coming out of the victim’s bedroom. The defendant was holding a pair of scissors and pointing it at the victim in a threatening manner. The victim managed to kick away the scissors and pushed the defendant against the wall after the two struggled for about 5 to 6 minutes. While the applicant was pressed against the wall, he grabbed a glass bottle of ketchup placed nearby and hit the victim over the head with it more than 10 times. The glass bottle broke in the process and the victim bled profusely as a result. The victim sustained (i)  3 laceration wounds on his face which required suturing by 5 stitches, 4 stitches and 2 stitches, (ii)  2 laceration wounds on his scalp which required suturing by 3 stitches and 1 stitch; (iii)  a 1 cm laceration would on his right middle finger; and (iv)  multiple abrasions on both his hands and forearms. On the applicant’s application for leave to appeal against sentence out of time, the Court of Appeal was of the view that a sentence of 27 months for Charge 2 neither wrong in principle nor manifestly excessive.   

17.  In HKSAR v Thapa Binaya HCMA 77/2018, the appellant was convicted after trial on a charge of inflicting grievous bodily harm, contrary to section 19 of the Offences against the Person Ordinance and was sentenced to 11 months’ imprisonment with 12 months’ imprisonment as the starting point. The case happened during a boat party. When group photos were to be taken at the boat, the victim found her bikini loosen from her back. When she turned around, she saw the appellant standing behind her making a funny face. The victim was angry and confronted the appellant. She wanted to hit him but was separated by her friend. Later on, the appellant went to the toilet. The victim was still upset and angry. She pulled the toilet door and found it unlocked. She confronted the appellant and wanted to kick him but was pulled away by her friends. The appellant then rushed from the toilet for some distance and punched the victim once on her face between the forehead and nose. As a result, the victim sustained swelling on forehead and fracture of nasal bone. She received surgery for the fracture. The appellant’s appeal against sentence was dismissed by Deputy High Court Judge V Bokhary (as she then was).   

18.  I am of the view that the facts of the present case were not as serious as those in Lai Hing Wan or Chan Ka Wah, but were more serious than those in Thapa Binaya.

19.  In the present case, the defendant used an unopened wine bottle to attack PW1. I was informed by the prosecution that the defendant hit PW1 with the Bottle once only. That said, on the presumption that the Bottle contained full amount of wine inside, the force applied to PW1 when the defendant smashed PW1’s head with the Bottle must be a lot more significant then smashing PW1’s head with a glass bottle with no or less wine inside. Also, on the basis that the defendant smashed PW1’s head only once with the Bottle, the force must have been very heavy so much so that the Bottle broke by only one smash. Further, the defendant was at the other end of the Yacht before the attack. He took the Bottle, walked the whole length of the Yacht from one end to the other, approached PW1 from behind and attacked PW1. The defendant’s conduct was spiteful and malicious. This incident was also un-provoked by PW1 who just wanted the defendant to leave him alone. I did not lose sight to the fact that PW1 did not seek medical treatment on the offence date, and that he was not hospitalized after medical treatment the next day. Nonetheless, PW1 bled from his head when he was smashed. He suffered a 3 cm wound at the scalp. The injuries PW1 sustained was not insignificant. Indeed, given the fact that the defendant smashed PW1’s head with the Bottle with wine inside, it was sheer luck that PW1’s injuries were not too serious.

20.  In HKSAR v Clifford Martin Frank HCMA 1113/2001, Madam Justice Beeson (as she then was)  quoted a passage by Lord Chief Justice in R v Goodwin and others [1999] 2 Cr App R 128 CA which read:

“For an offender who had committed such an offence, there was a legitimate public expectation that he would be severely punished to bring home to him the gravity of the offence and to warn others of the risk of behaving in the same way. If such punishment did not follow, public confidence in the administration of the criminal law was weakened and there would be a temptation on the part of some to exact their own retribution. And, as to the victim, punishment could not heal wounds but inadequate punishment could add insult to the injury.”

Lord Chief Justice was dealing with the equivalent of the offence of wounding with intent (section 17 offence)  in Goodwin; but Madam Justice Beeson (as she then was)  said those observations were pertinent equally to offences under section 19 and section 17.

21.  The defendant had a previous conviction of the same offence and a 120-hour community service order was imposed on him in February 2017. I do not think imposing a community service order appropriate for the present case.

22.  Having considered all the circumstances of this case, I adopt a starting point of 15 months’ imprisonment. One-third discount is given to the defendant for his guilty plea, thereby reducing his sentence to 10 months’ imprisonment.

23.  The defendant was under the influence of alcohol at the time of the offence is not a valid mitigating factor: paragraph 27 of HKSAR v Ng Ming Hong (吳明杭) HCMA 381/2022. To put it in another way, the starting point for this case would have been a lot higher than 15 months if the defendant was not under the influence of alcohol.

24.  The defendant was willing to make compensation to PW1. This morning, I was informed that PW1 asked for compensation of HK1.5 million. It was a significant amount of money and understandably the defendant was unable to pay that amount without the chance to look carefully how that HK1.5 million was made up with.

25.  Regarding the defendant’s joint donation with a Mr Lai of HK$10,000 in April 2023 and his participation as a voluntary bartender at Mother’s Choice Gala Dinner 2023, I do not think they could make the defendant a person of “positive good character” in the court’s eyes. Nonetheless, I am willing to make a downward adjustment of his sentence to 9 months and 3 weeks’ imprisonment because of the defendant’s aforesaid donation and volunteer work.

26.  There being no further mitigating factors justifying further reduction in sentence, the defendant is sentenced to 9 months and 3 weeks’ imprisonment.