HKSAR v. LU KWOK LEUNG

DCCC 902/2023

[2024] HKDC 1878

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 902 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant is convicted on his own plea and agreement to amended Summary of Facts for a charge of wounding, contrary to section 19 of the Offences against the Person Ordinance, Cap 212.

Facts

2.  At around 1920 hours on 4 November 2023, the defendant and his friend were having dinner at Mui Che Restaurant in Tuen Mun.  There was a boiling lamb hotpot on the dining table.  The victim (PW1)  later joined the defendant at the restaurant. 

3.  PW1 and the defendant were ex-lovers.  They had a dispute.  In the heat of argument, the defendant flipped the table at the direction of PW1.  As a result, the hotpot splashed onto PW1.  PW1 was sent to the hospital.  Photos of PW1 as well as the restaurant were taken.

4.  Later, the defendant was arrested for inflicting grievous bodily harm. Record of interview was conducted with the defendant.  Under caution, he said that PW1 grabbed a cup and threw at him, he became emotional and flipped the table, but he never thought that the lamb hotpot would splash onto PW1.  He knew he was wrong. 

5.  According to the medical report of PW1, PW1’s total body surface area of injury was 13%, including superficial burn over left side of neck (~3%), left UL (<1%), superficial partial thickness burn with blisters over right upper chest (~2%), left upper chest and shoulder (~3%), right inner thigh (~2%)  and left inner thigh (~2%).  She was admitted to hospital on the day of the incident and was discharged on 15 November 2022.

6.  PW1 was last seen in the plastic surgery outpatient on 14 March 2023 and all wounds had healed.  There were residual hyperpigmentation over left shoulder and bilateral thighs, as well as erythema over the scars.

Criminal Record

7.  The defendant has one previous criminal record involving conviction in a gambling establishment back in the year 1999, for which he was fined $1,000.

Mitigation

8.  The defendant is now aged 47.  He is locally born and has received education up to Form 5.  He has been working as a building repair technician earning $25,000 per month.  He lived separate from his wife and son but he supports them.

9.  Defence counsel tendered to this court mitigation letters from the defendant’s aunt, former schoolmates and friends.  They described the defendant as a caring friend and responsible father, kind-hearted with gentle personality.  They were said to be shocked when they learned of this incident and trusted that the defendant’s act was reckless and impulsive.  They believe that the defendant would have deep regret for what he has done.

10.  Defence counsel submitted that the defendant and PW1 were ex-lovers and on the day of incident, PW1 suddenly turned up at the defendant’s dinner with his friend, which gave the defendant a shock.  They started quarrelling about their relationship and PW1 suddenly threw a glass directly at the defendant which hit his chest.  In response to the provocation, the defendant flipped the table out of impulse.  It was said that he did not foresee the contents of the hotpot would be splashed onto PW1 causing her injuries.  It was also said that PW1 was later convicted upon her own plea with common assault for the action.

11.  Defence counsel submitted that the defendant has no triad background. He was reckless and he acted on impulse when he committed the offence and that the commission of the offence was being provoked by PW1.  It was not an act of revenge.  The whole incident was spontaneous and was not premeditated.  No weapon was used and the defendant had no previous criminal record relating to violence.

12.  It was said also that the defendant was fully co-operative with police. He never intended to cause serious injuries to PW1 and he is now deeply remorseful.  He acted out of character and it is highly unlikely that he would reoffend.

13.  Defence counsel also referred this court to several cases, including HKSAR v Tsang Kin Wing HCMA 319/2013, HKSAR v Yu Yin Ming HCMA 492/2009 and HKSAR v Lam Cheuk Kit DCCC 627/2018. 

14.  Defence accepted that this is a serious case and that immediate custodial sentence is inevitable.  On the other hand, he said he was bound by instructions to ask this court to call for a community service order report and he referred this court to the case of HKSAR v Chow Chak Man CACC 447/1998.  He asked this court to impose a lenient sentence on the defendant.

Discussion

15.  On conviction of this charge upon indictment, a person is liable to imprisonment for 3 years. 

16.  There is no sentencing tariff for this offence as the facts in each case varies. 

17.  The injuries suffered by the victim in this case could be described as serious.  She was hospitalised for 12 days and according to the medical report, there was 13% of the total body surface area affected by superficial burn or superficial partial thickness burn.  After her discharge, she had to be treated regularly by outpatient treatment.  Until 2 years after the incident, there were still residual hyperpigmentation over left shoulder and bilateral thighs, as well as erythema over the scars.  For a lady in her 30s, this would inevitably lead to loss of confidence or self-esteem.  This hyperpigmentation and erythema could be visible when one wear summer dress, shorts or swimsuit. They will also serve as a reminder to the traumatic experience.

18.  This court accepts that the defendant committed the offence after he was provoked by the victim who threw a glass at him, and that he acted on impulse. But his act was obviously out of proportion.  He might not have intended but in the least he was reckless.  The contents of the hotpot would injure the victim.

19.  No weapon was used and the defendant acted alone in this case.  The matter does not relate to triad society.  The meeting between the defendant and the victim was not prearranged.  Rather, it was the victim who located the defendant and joined him at his dinner.  There was therefore no premeditation.

20.  Save for a gambling offence, the defendant now aged 47 did have a clear record.

21.  Letters from the defendant’s aunt and his friends all support the defendant and say that it was totally out of character for the defendant that he committed the offence and that the defendant would not reoffend.  They also say the defendant is a gentle and kind person.  The defendant in his letter says that he is now deeply remorseful as to what he has done and vows not to reoffend or act on impulse in the future.  This court accepts that the defendant has learned a lesson and that it is unlikely that he would reoffend.

22.  Considering the circumstances of the case, this court finds that whilst immediate custodial sentence is the only appropriate sentencing option, people must be deterred from resorting to violence even in the face of provocation, this court however would adopt a sentencing starting point of 6 months’ imprisonment.

23.  The defendant has pleaded guilty and is therefore entitled to full one-third sentencing discount. 

24.  The defendant is sentenced to 4 months’ imprisonment for the present offence.