HKSAR v. LAI YIU TONG

HCCC 176/2019

[2020] HKCFI 422

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 176 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

This is a very sad and tragic tale of a very decent man and is thus a very difficult case to sentence.

The defendant had pleaded guilty in the Magistrates’ Court to one count of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212.

The beginning of this tale was in 1983 when the defendant married his wife, who is the victim in this case, and the two of them then had two sons.

From what I can gather from the letters that have been submitted to me in mitigation, not only from the children but from the defendant himself, the early years of the defendant was filled with struggle and hard work. He was a good father and a good provider to the family, and though he had to work in China, in the mainland, he would often travel back to look after his sons.

Over the years, he built up his business and he became, finally, a sole proprietor of his land investment consultancy. Unfortunately, the relationship between his himself and his wife deteriorated and in early 2018, there was a divorce process initiated.

By the stage of the date of the offence there were some disputes between the two of them about the allocation of matrimonial property. However, as is clear from the Summary of Facts, the defendant and the victim did agree that the matrimonial premises would belong to the victim after the divorce, while the defendant would himself keep a flat which they had in Lai Chi Kok.

On the date of the offence, the defendant and his younger son had just returned from Japan and he and the family were having winter solstice dinner. It was during the dinner that the defendant then asked the victim, his wife, to return him a Cartier watch. As Mr Poon pointed out, which I accept, that it was not because of the value of the watch but rather this was the watch that commemorated the love and marriage between he and his wife. When it was bought, it was bought as a pair.

The argument became more and more serious because the wife refused to return the watch to him. It was at that stage that the defendant seemed to have lost control and acted completely out of character by going and picking up a shovel and hitting the victim. So the younger son, upon seeing this, immediately called the police.

After a while, the defendant put the shovel down and grabbed a chopper and began chopping at the victim. Eventually, the younger son managed to disarm the defendant. And finally, the police arrived. It is clear that the defendant was remorseful as he made a full admission to the police.

The victim suffered extensive injuries and was in hospital after her operation in the intensive care unit for almost a month. She had wounds on her head and neck, and hand. Much was done to repair the nerve and artery and tendons in her hand, and subsequently she was transferred from Prince of Wales Hospital to Tai Po Hospital in January this year. Most of her wounds had healed by now.

There was some problem with her ring finger on her right hand, but I have been told that in the latest operation, that was a successful operation and that will heal. What remains is the left facial palsy. The victim has been examined by a plastic surgeon and she has been offered a facial reanimation at a later date.

The defendant is aged 63 and has a clear record. As I have said, he has led a completely decent life up to now and is an exemplary citizen of Hong Kong. He practically clawed his way up from poverty to being the sole proprietor of a land investment consultancy purely through his hard work and determination.

The defendant has led a very simple life with no vices. His only hobby is, as he said, hiking in the hills with friends. He is a good father, a good provider to the family and he used to give all his earnings to his wife over the years.

He not only provided for his family, but in the past 15 to 20 years he also sponsored many students to university in the mainland. And over the years, many students had benefited from his generosity, and I am informed, including two who have become doctors and still keep in touch with him. He also sponsors free meal tickets every month; about 100 to 500 free meal tickets. He also sponsors arthritis medicine to people in need, also around 100 to 150 per month. This is in fact evidenced by the many signatures which have been appended to the defence mitigation bundle by these people who have benefited from the free meal tickets and from the arthritis medicine.

So for a man of such a decent character, by this age he should be enjoying a very happy family life. Unfortunately, he then is faced with divorce proceedings because his wife had met another man through her love of dancing.

As the defendant said in his letter to the court, which I accept, is that the frequent arguments with his wife over the divorce matters actually caused him to be depressed and caused him to suffer from a lack of sleep. And therefore, when the argument over the watch on that night of the offence happened, it was what we would call “the straw that broke the camel’s back”.

Apart from her refusal to hand the watch back, I am also informed by the defendant in his mitigation letter that the wife had made certain provocative remarks against his integrity and that is why he became very angry. Thus, he completely lost control and acted out of character.

So, clearly, this is a very sad case not only for the victim but also for the defendant who has seen all that he had worked for in the past to build a happy home lie destroyed. However, society cannot condone violence of any kind, especially in a domestic situation.

In the case of the Secretary for Justice v Chau Wan Fun [2006] 3 HKLRD 577 which Mr Poon referred to, it is a very similar case to the present as it is a domestic violence case where the wife was the assailant who attacked the husband with knives, leaving the husband in a vegetative state.

Again, in that case the wife was a very hardworking and decent lady who became outraged because through the husband’s indebtedness they had lost their home. And when she discovered that not only that happened but also that he had stolen her jewellery and pawned them in order to pay for this debt, she then lost control and attacked the husband with knives.

The Court of Appeal considered that a sentence of less than 6 years’ imprisonment in that case after trial would not be justified. It is at headnote 3 of the report of that case, which Mr Poon referred me to, that the Court of Appeal said that “whilst an outpouring of public sympathy towards the plight of an offender”, as was the case here with signatures of a number of persons showing their support towards the defendant, “might in some circumstances be a relevant consideration for the purposes of mitigation.” But the Court of Appeal noted that where the offence was this grave, such mitigation necessarily carried very limited weight.

However, the Court of Appeal went on to say as some of the letters showed that the defendant’s conduct was entirely out of character, this was a factor not to be ignored. In this case, there is a lack of premeditation; it was a spur of the moment attack and it was completely out of character.

The defendant is a man who is generous and unselfish and this is the evidenced by the love of the many people coming to court today who have packed the courtroom, and particularly his sons, who love him very much, is evidenced in the letters that they have written to the court. Not only that, the fiancée of the elder son has also written to the court testifying to this very decent character of her future father-in-law.

However, punishment must necessarily follow as a result of this violent act as a deterrence to others thinking of committing violence in the home. I have considered all the relevant cases submitted by both Miss Chong and Mr Poon, and the facts of this case. There is no sentencing guidelines and each case must necessarily turn on its own facts.

So having considered the facts of this case, the background and all that I have said, I consider that a reasonable starting point sentence would be one of 4½ years. Because the defendant has demonstrated his remorse by pleading guilty at an early time, he is entitled to the full one-third discount and so the sentence is reduced to one of 3 years.