HKSAR v. LUO ZHIJI also known as LO CHI KEI

DCCC 661/2018

[2019] HKDC 609

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 661 OF 2018

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REASONS FOR SENTENCE

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1.  In the present case, the defendant was originally charged with a charge of attempting to cause grievous bodily harm with intent. An alternative count of assault occasioning actual bodily harm was also included and apparently the parties have put their heads together in the meantime for this morning, after the defendant’s plea of guilty to the assault occasioning actual bodily harm count was tendered, it was accepted by the prosecution.

2.  The facts can be summarised as follows.  The victim in this case, Madam Li, was the former wife of the defendant.  They had a divorce on 22 February 2018.  According to two letters from the victim which were placed before me this morning, one of the reasons for the divorce was the defendant’s addiction to gambling.  Apparently after the divorce was granted, the couple still remained in contact but the relationship was clearly far from amiable because, according to the criminal conviction records which I have had this morning, the defendant was involved in a common assault, a criminal intimidation and a criminal damage all inflicted on the victim only weeks before the present offence was committed.

3.  In any event, on the day in question, which was 8 April 2018, at around 10:40 pm, the defendant showed up outside the unit where the victim, Madam Li, was then residing.  As soon as the door for the unit was opened, Madam Li saw the defendant.  Madam Li was pushed into the subdivided room she was occupying, “tong fong” as we call it, and the defendant grabbed her keys to the room and the unit and closed the door of the room of Madam Li behind him. When Madam Li asked the defendant to leave, the defendant did not do so.

4.  According to the defendant, who has put a letter also before me, he was on his knees begging for a reunion.  That the defendant was asking to be reunited is accepted by Madam Li in the letters she wrote to the court.  Whether the defendant actually went on his knees however is not made clear in the two letters.

5.  In any event, Madam Li refused the defendant’s request.  Thereupon the defendant got very emotional. He pushed Madam Li onto the bed and squeezed her neck with both hands.  The force of the squeeze was such that Madam Li could not shout or breathe and eventually lost consciousness.  According to the Summary of Facts, Madam Li did not know how long she had passed out for but was awakened when she felt her body and face being slapped by the defendant.  And when Madam Li eventually came round, the defendant kept on begging Madam Li not to call the police.

6.  Madam Li was still feeling very dizzy.  She asked the defendant to leave and said that she would not call the police.

7.  After the defendant left, Madam Li felt that her nose was bleeding, she vomited and cough up blood.  Concerned obviously with her own condition, she decided to call the police.

8.  Later that evening she was rushed to hospital where the following conditions were found by the doctors who examined her:-

(a) Petechiae over bilateral facial and anterior neck areas;

(b) subconjunctival haemorrhage over both of her eyes;

(c) congested conjunctivae;

(d) tenderness over both eyes;

(e) spots of ecchymotic discolouration over the bilateral tympanic membranes (referring, this, to her ears); and

(f) bruises all over her neck.

9.  She was kept in hospital as a result for 5 days as she was only discharged on 13 April 2018.

10.  The defendant surrendered to the police in the evening of 9 April 2019. Under caution, he told the police, among other things, what he said had happened inside Madam Li’s room.  He said that he had used both of his hands to squeeze Madam Li’s neck for around 30 seconds and when he was squeezing Madam Li’s neck he saw her suffering, raising her hands and waving them as if she was telling him to stop.

11.  He further told the police that after he let go of Madam Li, she told him that it was very painful, that she could not breathe and that he should open the window and give her some water, which he did.

12.  The defendant added that after a while Madam Li appeared to have returned to normal.  The defendant begged her not to call the police and after Madam Li told him that she would not be calling the police, the defendant then left.

Defendant’s background

13.  The defendant is 41 years old.  He was born in the Mainland China.  He worked as a casual decoration worker earning around HK$30,000 per month. According to the antecedent statement, which is accepted as being correct by Mr Li, the defendant’s solicitor, the defendant was living with his parents and his son and a daughter at a private residence in Mong Kok.  These children, the son and the daughter, that is, were children from his former marriage.

Mitigation

14.  This morning, Mr Li, who appeared for the defendant, laid considerable emphasis in mitigation he advanced for the defendant on what he called a paper divorce for the couple.  It was said by Mr Li that in fact the victim divorced the defendant in February 2018 solely for the purpose of pressuring the defendant to quit gambling and that in fact after the divorce both of them still lived together.  It was only after the defendant relapsed into gambling that the victim moved out to the subdivided room where the incident happened and it was said by Mr Li that all along they regarded themselves as husband and wife in spite of the divorce, that the divorce, as he said earlier, was only used by Madam Li as a means to pressure the defendant to stop his gambling habit.

15.  It was said further in mitigation by Mr Li that the defendant is now remorseful, that he had surrendered to the police on his own motion, that Madam Li had forgiven him as could be seen by the two letters she wrote to the court and that there is a possibility of the couple coming together again one day provided that the defendant could deal with his gambling addiction problem.

16.  I have also this morning been referred to a few cases, all of them, I think, were Magistracy appeals.  These included a case by Mr Justice Litton, VP as he then was, in R v Yung Yu Chung HCMA 138/1995, HKSAR v Lai Ka Lun HCMA 1025/1999 and lastly, HKSAR v Le Gat Richard Franck [2018] HKCFI 1291.  Now, relying on these cases, it was said by Mr Li that a sentence of no more than 3 months and maybe even a suspended sentence for that purpose would be appropriate for the present case.  It was said by Mr Li that afterall the injuries suffered by the victims in the aforesaid cases and the manner the assault was being carried out were all more serious than what we have seen in the present case.

17.  As I have indicated to Mr Li after that last point was made, I am inclined to take a different view.  To start with, each case rest on its own facts and when it comes to the fixing of an appropriate sentence in a particular case, former decisions were of only limited assistance.  As I have also pointed out to Mr Li, there are in this case three features which clearly made the case more serious in my view than what we have seen in the others.

18.  The first point is the fact that the victim must have been put under great fear at the time; clearly she was concerned with her life.  In my view, it is not difficult to imagine how frightened she must have been after being trapped in this room of hers by the defendant, where the defendant turned violent and launched a vicious attack on her.

19.  The second matter is the fact that she was reduced to near asphyxiation as a result.  In fact, as one could see from the Amended Summary of Facts, she lost consciousness after her neck was being squeezed on for some time and one could see the force of the defendant’s grabbing of her neck from the bruises and the other injuries the doctor found when Madam Li was taken to hospital. Had the defendant not stopped, there is, in my view, a good chance that the case would have become one of manslaughter.

20.  Lastly, but not least, there is of course the fact that the defendant was in fact attacking the victim only 2 to 3 weeks before the present offence which resulted in his conviction of the offences of common assault, criminal damage and criminal intimidation.

21.  With all these matters in mind, I am of the view that a sentence of 9 months’ imprisonment would have been the appropriate starting point.  If not for the very gracious letters and the forgiveness Madam Li has exhibited in her letters, I would have considered an even higher sentence to have been warranted in the circumstances.

22.  The defendant pleaded guilty to the charge, a plea which I take it was indicated at the earliest opportunity. The defendant is therefore entitled to the full one-third discount.  That would accordingly reduce the sentence to one of 6 months’ imprisonment.