HKSAR v. NGHIEM WAI MAN

DCCC 103/2024

[2024] HKDC 2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 103 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant was charged for one count of wounding with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap.212. The defendant pleaded guilty and admitted the facts. He was convicted accordingly.

2.  The defendant is 23 years old at the time of conviction; in principle, he is eligible for detention in a detention centre. Given that this is his first conviction and given the circumstances of the commission of the offence, I find it prudent to call for a detention centre report and a background report before sentencing him.

FACTS

3.  The defendant’s mother and the victim were unmarried couple.  The defendant resided with them.  The family of three moved to their new residence on 30 October 2023.

4.  At around 2215 that night, whilst the defendant and the victim were looking for cooking appliances, they had a dispute.  In a heat, the defendant used a ceramic knife to stab the victim’s abdomen and chest area for several times.  The two struggle with each other, the mother came out from the bathroom and separated them.  The victim escaped to the ground floor and later conveyed to QEH in an unconscious state.

5.  The defendant was arrested and admitted stabbing the victim out of anger and that their relationship was poor under caution.

6.  In a subsequent VRI, the defendant said whilst they were looking for cooking appliances, the victim suddenly scolded him in Vietnamese.  He picked up the knife nearby handed it over and asked the victim to kill him if he hated him.  The victim did not pick up the knife but punched his face instead.  In a heat, he used the knife to stab against the victim several times; he stopped when he heard the victim said “I am dead”.  The mother showed up and separated them.

7.  The victim sustained multiple chest wall and upper limb lacerations and had unstable vital signs on admission to QEH with bleeding from his wounds.  He received urgent surgery, chest drains were inserted for pneumorthoraces, right anterior chest wall hematoma with bleeding from a branch of right axillary artery, hematoma along the lateral aspect of left lower chest/upper abdominal wall with active bleeding were noted, injured tendons, ligaments, and nerves were repaired. Thereafter he remained in ICU until his condition stabilized and was transferred to Orthopaedics and Traumatology ward on 5 November 2023.  He was later transferred to KH for further rehabilitation, the discharge date unknown.

8.  The victim was seen at the out-patient department on 16 November, 2023 with wounds well and residual numbness was noted over right middle finger, left index and middle finger numbness.  Out-patient physiotherapy and occupational therapy is ongoing. Number of sick leave also unknown,  the information is not available due to lack of consent from the victim.

BACKGROUND / MITIGATION

9.  From the defence mitigation and the defendant’s reports.  The defendant aged 23, clear record and was educated up to From 4.  He was born out of wedlock and the father deserted the family in 2007 when he was 5 to 6.  The mother later entered into a relationship with the victim (it is still an ongoing relationship), the defendant has been living with the victim for ten years since he was around 12 studying primary 6.   

10.  The defendant started working as a part-time waiter in 2018 when he was a Form three student, earning a few thousand per month.  He left school after completing his repeated year of Form Four in July 2020. he continued to work as a part-time waiter up to May 2021 thereafter he became idle at home.  At the time of the offence, the victim has been the breadwinner of the family though he was a heroin abuser.

11.  Since his birth, the defendant lived with his family but they had no fixed abode.  After the father deserted the family, the defendant was raised by his mother single-handedly. However, due to the mother repeated imprisonment and lack of parenting skill; she failed to exercise proper and adequate supervision over the defendant.  

12.  Since 2014, the defendant was made to live with the victim, their relationship was fair initially, but turned sour after two years as the victim always disputed with him over trivial matters.  Criticisms from the victim were on a very frequent basis, anything went wrong at home, the victim would attribute blame to the defendant, yelling at him, frequently criticize him being lazy and useless; the mother would not intervene and defendant used to remain silent.  The mother noted that the defendant turned unmotivated in study and his school result deteriorated sharply and usually kept mute at home and seldom talked to her. The mother is in Court to show her support and will continue to support the rehabilitation of her son.

13.  On the day in question, the family moved to their new residence, the defendant felt very tired and lost control.  The defendant accepted that on this occasion he has acted extremely rashly without thinking properly about the consequences.  The defendant was deeply remorseful and regretful of the serious injuries caused.  The mother was sorrowful towards the present incident and pleaded for leniency.

14.  The defendant made full and frank admission at the scene and remained cooperative during investigation.  He has been on remand for a year.  He understands that given the severity of the offence, he is facing a prison sentence.  Upon the conclusion of this case, the defendant intends to move out, and engage the assistance of social welfare groups to find alternative accommodation.

SENTENCE

15.  The maximum sentence on conviction upon indictment for the offence of wounding with intent is that of life imprisonment.  Depending on the facts, the usual sentence is between 3 and 12 years.  The gravity of the offence lies in the deliberate resort to violence with the intent by the offender to inflict by such violence really serious harm on the victim.

16.  In HKSAR v Chan Chun Tat CACC 317/2012, The Court of Appeal stated that in determining the gravity of the offence, the factor of primary importance is the intent of the assailant to cause the victim really serious bodily harm.  Whether that intent was fully realized in the injuries sought to be inflicted has been said to be of “secondary significance”.  As the consequences to the victim may not be as the assailant intended.  Tragically, they may be worse, but even when they are not or they are not as bad as the assailant hoped to achieve that may not lessen the gravity of the offence.  For the failure of the offender to achieve the level of harm he intended may be due to resistance by the victim, the intervention of others, speedy medical attention or purely unanticipated fortuitous circumstances.  The Court of Appeal also identified certain usual factors relevant in sentencing:

•  the extent to which the assault was premeditated,

•  the reasons or motivation underlying the assault upon the victim,

•  the mental or emotional state of the assailant at the time of the assault, whether alcohol or drugs contributed to the actions of the assailant,

•  whether the assault was committed by the assailant alone or as part of a group,

•  the type of weapons employed,

•  the level of force or aggression and the persistence with which the assault was pressed home,

•  the injuries caused to the victim and the effect of the assault upon the victim and those close to him or her.

17.  The present case came within the category of domestic violence, yet it was not simply a typical type of domestic violence where an angry argument escalates out of control and one party resorts to violence.  There is more to this incident than its first appearances might suggest.

18.  The defendant agreed the content of the reports in general.  As revealed in the reports, the present case was a family tragedy after a long-term unresolved family conflict.  The defendant started living with the victim when he was in primary Six, he was a victim of child abuse and has been subject to emotional abuse form the victim over the years.   The mother was unable to handle the ongoing tension properly and only asked the defendant to be tolerant in the conflict.  On this occasion, during one of their usual family episode, the verbal abuse turned physical for the first time, following a punch from the victim, out of momentary anger, the defendant committed the present offence. 

19.  Knife is a potential lethal weapon.  Yet there was no premeditation; it just happened that he had a knife in his hand.  The victim, however, sustained really serious injuries and stayed in ICU for 5 days. Residual numbness was noted on 16 November 2023 over his fingers and on-going out-patient physiotherapy and occupational therapy required.

20.  As observed by the officer who prepared the DC report, throughout the interview, the defendant was polite and cooperative in disclosing his background information.  He apologized to the victim and his mother.  He showed sense of remorse and promised to behave in future.  In discussing his future, he planned to obtain a driving license after settling the present case.  Likewise, the probation officer is of the view that the defendant was out of mind in the incident and he was truly remorseful of his impulsiveness.

21.  The medical officer has confirmed that the defendant is medically unfit for detention in a Detention Centre, that being the case, imprisonment is the only sentencing option.  Having consider the age and the character of the defendant, the background of this domestic violence, the circumstance of the wounding, the attitude of the defendant after the incident and the injuries caused.   I consider the appropriate starting point to be one of 39 months.   The defendant is entitled to 1/3 discount for his guilty plea.

ORDER

Sentenced to 26 months’ imprisonment