HKSAR v. TSE KWOK SAN, ANDY

 DCCC391/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 391 OF 2010

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to two charges.

2.  The 1st charge is inflicting grievous bodily harm, contrary to section 19 of the Offences against the Person Ordinance, whereby on 11 February 2010, outside Yee Hong House, Hong Wah Court, Lam Tin, Kowloon, you unlawfully and maliciously inflicted grievous bodily harm upon Shum Po-lin, your ex-wife.

3.  The 2nd charge is one of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, whereby on that same day, at the same location, you drove your private car on a road recklessly.

4.  On the day in question at about 7.15 in the morning your ex-wife and your son were walking towards their school bus in Lin Tak Road. At that time, you had parked your car nearby. After your son had got on the school bus, your ex-wife then walked back towards Hong Wah Court along the pavement.

5.  At the same time, you drove your vehicle slowly behind her. When she stopped walking, you stopped your vehicle. She then crossed the road in front of your vehicle, that is from your passenger side across towards the driver’s side. You suddenly drove across the other side of the road towards her, and knocked her down by the front side of your vehicle, that is the driver’s side.

6.  You then steered left away from her, and then steered right and rammed into the railings and flower bed. You alighted from your vehicle, immediately went towards your ex-wife, tugged her hair and punched her head with fists, then tried to pick up a concrete stand nearby with a metal pole in it. She struggled with you and finally managing to escape.

7.  A passer-by had seen your vehicle crash into the flower bed. He and a security guard nearby also saw and heard your ex-wife shouting for help, then you assaulting her with fists on her head and kicks on her back. You also tugged her hair and pulled her towards that concrete stand.

8.  You attempted to pick the stand, and whilst doing so, the passer-by shouted, “Don’t do it, you will kill her.” At this juncture, your ex-wife managed to escape and rushed towards the management office of Yee Hong House.

9.  Police soon arrived at the scene and you were arrested. You admitted having assaulted your ex-wife.

10.  You also admitted under caution in a video-recorded interview that when you saw your wife and son that morning, you called out to them; however your wife and son ignored you. After your son had got onto the school bus, you attempted to talk to your ex-wife by driving behind her. While she was crossing the road, she suddenly stopped and your vehicle knocked her down, and you finally rammed into the flower bed.

11.  You admitted having beaten her head for some 10 times and that you only intended to pick up the concrete stand to threaten her but the stand was too heavy.

12.  Your ex-wife was found to have a fracture on her skull; tenderness on her back, occiput, left ankle and left foot; bruises on her left ankle and left lower back; swelling on her scalp and left ankle; and abrasions on her left foot and lower back.

13.  You are 39 years of age and have five previous convictions, of which two are assault occasioning actual bodily harm, to which you were fined $600 each in 1992. The other convictions concerned drugs and tampering with a motor vehicle.

14.  Mr Sadhwani has made full and thorough mitigation on your behalf, and I have taken into account all that he has had to say for you in mitigation.

15.  Upon reading the facts when you pleaded guilty, I was concerned about your background and I wanted to know more about the break-up of your marriage. I therefore called for a background report, a psychologist report and a psychiatrist report. I have considered and read those reports and they are very helpful in my consideration of your sentence.

16.  As for the psychiatric report, the doctor says that you do not suffer from any critical psychiatric condition. As for the psychologist’s report, that is a very detailed report and gives me a good insight into your thinking.

17.  You are the eldest amongst four siblings, your parents are divorced, you have a good relationship with your mother and not so much so with your father. Your parents are now divorced.

18.  You left school at age of 15 and worked on and off as a hairdresser for about 10 years.

19.  You married in the year of 2000 to the victim in this case, your ex-wife, who was living in China. Your courtship was for only 6 months before you married. Soon after that, your son was born in 2002. During your wife’s pregnancy and after your son was born, you went to China to look after her and your son for approximately 3 years, as a result of which you were unable to maintain a steady job.

20.  In 2005, you brought your son to Hong Kong to live. You were the primary carer of your son whilst your wife remained in China and came to Hong Kong to visit the son every 3 months on a two-way permit. As you were preoccupied in your childcare, you could not engage in full-time or stable employment and thus lived on CSSA since 2006.

21.  In 2008 your wife was granted her single­ entry permit to Hong Kong. However, unfortunately after she settled in Hong Kong, your marriage became unstable. You considered she was overspending and not involving herself in household chores.

22.  On the other hand, you have admitted that you abused cough medicine, which together affected your marriage. Your marriage further deteriorated in 2009 as your wife then got involved in extra marital affairs.

23.  Your wife often complained about your unstable employment and low income. This led to recurrent arguments between yourself and heated conflicts.

24.  When you found out about your wife’s extra marital affairs, you were so angry that you punched her lover. You were desperate to save your marriage and repeatedly asked your wife to stop seeing her lover, but she was hesitant to do so and often avoided discussion on the issue with you.

25.  Feeling deeply frustrated, you once threatened to kill yourself with a knife if she did not resolve the relationship problem. Your wife subsequently made a report to the police and accused you of threatening to harm her, but there was no charge against you in the end; and your son was put under a care of a protection order and your family has been followed up by the social worker since then.

26.  Miss Chan, the social worker stated that your wife sought help your wife was concerned towards you wanting to commit suicide, and your constant marital conflicts.

27.  Even after your wife had moved out of your home with the son, Miss Chan, the responsible social worker, said that you still could not let go of your emotions for your wife, and begged her for her reunion. You were very attached to your son, and had rendered previous good care to him.

28.  Though there had not been any physical violence reported during your previous encounters with your ex-wife, your ex-wife felt being psychologically threatened and disturbed by your frequent phone calls to her.

29.  After your wife had moved out you eventually got divorced in October 2009. Your wife was granted custody of your son, and you then had access to him. At first you had weekly visits, and when you acquired your car, your visits became more frequent but irregular. You waited for your son near his school to see how he was doing.

30.  You followed him to the tuition centre on several occasions; and you also called your ex-wife from time to time to discuss your son’s adjustment issues. However your ex-wife found these acts very disturbing, and therefore you had conflicts about this.

31.  You stated that your wife often tried to provoke you by speaking to you in a very nasty manner, and also repeatedly threatened to file a restraint order against you so that you could not see your son any more.

32.  Your mother was interviewed by the psychologist and she said that you had been irritable and very dejected over the past 2 years because of your marital problems.

33.  On the day in question, you had waited for your ex‑wife in the car at the material location to discuss the schedule of visiting your son over the Chinese New Year. However, even though your son and your ex-wife noticed you, they simply ignored you. After your son got onto the school bus, you then tried to speak to your wife and she ignored you. She crossed the road; you were feeling very anxious and angry at that time. You could not brake your car, and thus it collided with her.

34.  You believed that your wife deliberately made your car hit her so she could apply for a restraint order against you. You then, feeling anxious and angry, hit and kicked your wife in a rage.

35.  You regret what you have done; you know your behaviour was wrong. You know that this will affect your contact with your son.

36.  You have now realised, however, your marriage is over. Your hatred towards her has subsided, although you will seek psychological service to handle your emotion and lead a regular life after your discharge, and look forward to see your son again thereafter.

37.  You are an impulsive man with low self-esteem. As the psychologist says, you need psychological intervention to improve your anger management skills.

38.  The offence that you have committed on this occasion appears to me to have arisen from a very bad period over the last 2 years, eventually coming to a boiling point on that morning. This clearly arose from the intense fear of losing your son and the accumulated rage and anger you harboured against your ex-wife and the break up of your family.

39.  On top of this, you appear to have been faced with your ex-wife’s hostility. This distressed you, and eventually you snapped.

40.  As you rightly realise, you have done wrong and you should be punished, and you have, through your plea of guilty, shown me your remorse.

41.  You have also through the psychologist and the probation officer shown me that you will seek to turn a new leaf and better handle your anger management skills and violent emotional outbursts, and hope to stop your maladaptive ways of solving problems by substance and drug abuse.

42.  The psychologist says the risk of your re-offending is impressed to be within the range of low to moderate.

43.  Taking all these matters into account, it is inevitable that a prison sentence is the only appropriate one.

44.  For the offence of inflicting grievous bodily harm, I take a starting point of 15 months' imprisonment, and giving you full credit for your plea of guilty, that term shall be reduced to 10 months' imprisonment.

45.  For the offence of careless driving, you have no previous convictions for driving offences, you shall be fined $750.