HKSAR v. LAM CHEUK KIT

DCCC 627/2018

[2019] HKDC 273

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 627 OF 2018

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REASONS FOR SENTENCE

1.  The defendant pleaded guilty on 12 December 2018 to one charge of wounding Wong Lai Hung, contrary to section 19 of the Offences against the Person Ordinance, the maximum sentence for which is 3 years imprisonment[1].

2.  Sentence was adjourned for an update medical report on the injuries sustained by Mr Wong and for a report as to the defendant’s suitability to perform community service. 

3.  Full particulars of the offence are set out in the facts admitted by the defendant on 12 December 2018.  In summary Mr Wong Lai Hung and the defendant were colleagues and had been acquainted since 2016.  The defendant was the supervisor of Mr Wong.

4.  On 11 February 2018 together with other colleagues they attended a spring dinner at the “V Cuisine” restaurant in Yuen Long.  Both Mr Wong and the defendant consumed a lot of alcohol. 

5.  During the dinnerMr Wong and the defendant had a dispute.  In the heat of the argument the defendant picked up a wine glass and threw the glass towards the head of Mr Wong.

6.  This was captured on CCTV.  The CCTV footage has been played in court.  The parties have agreed a chronology of what happened in the minute preceding the defendant throwing the glass towards Mr Wong. 

7.  The next morning Mr Wong’s son noticed that Mr Wong’s left eye was bleeding.  Mr Wong therefore went to the Accident & Emergency Department of Tuen Mun Hospital. 

8.  Medical reports submitted to court show that Mr Wong was urgently referred to the Department of Ophthalmology[2]. Medical examination revealed a left eye laceration with traumatic cataract.  Mr Wong underwent an emergency operation to repair his left eye.   A second operation was necessary six days later. 

9.  The defendant was arrested on 27 February 2018.  Under caution the defendant admitted that while drunk he threw a wine glass at Mr Wong.  The defence accept that the injury to Mr Wong’s left eye was caused by the defendant throwing the glass at Mr Wong’s head. 

10.  On 10 January 2019 the visual acuity of Mr Wong’s left eye was checked and was found to be 6/90.  Current assessment is that Mr Wong is expected to suffer from 60% of visual loss in his left eye with overall 30% visual loss.  Mr Wong will have a secondary implantation of intraocular lens later.  It is unknown whether the visual loss is also due to the age of Mr Wong, who is 61.    

Mitigation

11.  In passing sentence, I take into account everything said on behalf of the defendant by Mr So, in particular that having separated from his wife he has two young sons, aged 2 and 4, to take care of.

12.  I have read the mitigation letter written by the defendant’s former employer which states that the defendant and Mr Wong had all along been on good terms at work and that there had been no previous arguments.    

13.  Mr So informs the court that the defendant no longer works for the same company having left shortly after the incident in the restaurant.  Since that time the defendant has worked as a construction site worker. 

14.  I take into account the defendant has no previous convictions for violence and that his last conviction was in 2010 when he was fined for an offence of making off without payment. 

15.  I accept that the defendant is remorseful for what happened and that he wanted to plead guilty when he first appeared in court in May 2018.  The case having been transferred to the District Court the defendant was only able to plead guilty on 12 December 2018. 

16.  The defendant initially offered to pay $5,000 compensation to Mr Wong which sum he has increased to $20,000 today.  The defendant is able to make payment forthwith.  Mr Wong however does not accept the sum of $20,000 and intends to issue civil proceedings.    

17.  In the circumstances and taking into account the defendant is an undischarged bankrupt, I do not make a compensation order.  

Sentence

18.  There are no guidelines for offences of wounding contrary to section 19 of the Offences against the Person Ordinance.  Mr So asks that a community service order be made. 

19.  The community service suitability report details the defendant’s background and employment history, which shows he has always been in work since joining the workforce. 

20.  The defendant is the main care giver of his two young children.  The defendant now cohabits with his new girlfriend Ms Law.  Ms Law enjoys a very good relationship with the defendant and the two young children.  Ms Law found out she was pregnant earlier this month. 

21.  The defendant is very sorry and remorseful for hurting Mr Wong under the negative impact of alcohol and has quit drinking since February of last year. 

22.  The defendant is recommended for community service. 

23.  In R v Marsden the Court of Appeal in England dismissed an appeal against a sentence of 12 months’ imprisonment where the appellant pleaded guilty to throwing a glass in a public house causing a cut to the head of the victim requiring hospital treatment[3].

24.  Having repeatedly viewed the CCTV footage, I am satisfied the circumstances the defendant threw the glass towards Mr Wong are very different to the circumstances in R v Marsden.  I accept that the defendant did not intend to hurt Mr Wong and that his act of throwing the glass was reckless.  

25.  In HKSAR v Lee Hon Yung the defendant and his friends had a drinking party in a disco[4].  Shortly after midnight 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.     

26.  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.

27.  Taking into account that both Mr Wong and the defendant had consumed a lot of alcohol;  the incident arose spontaneously in the heat of an argument; the defendant acted recklessly in throwing a glass towards the head of Mr Wong; the defendant did not intend to cause serious injury to Mr Wong; the defendant is remorseful for causing injury to Mr Wong for which he has offered modest compensation; there had been no prior arguments at work between Mr Wong and the defendant; and the defendant has no previous convictions for violence, I am satisfied notwithstanding the serious injury to Mr Wong’s left eye, this is an appropriate case for a community service order. 

28.  Having explained a community service order to the defendant and the defendant having consented to the making of a community service order, the defendant is convicted and sentenced to perform 200 hours’ community service[5].