HKSAR v. YIP KUM TONG

DCCC 495/2020

[2020] HKDC 905

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 495 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to an offence of "Wounding with intent" (Charge 1) and an offence of "Criminal damage" (Charge 2). He used a hammer to hit his neighbour and to damage the fence of his neighbour's house.

Summary of Facts

2.  Mr. Chow (PW1) resided in a village house situated at No.55 Sha Ling Tsuen, Man Kam To Road, Ta Kwu Ling ("the House").  The House was fenced off by corrugated metal panels.

3.  The defendant and PW1 have been neighbours for about 20 years.  Their relationship turned sour in 2016 due to some land-related disputes.  About 4 months prior to the present case, the defendant had complained about PW1 washing the ground near the entrance of the House, which affected the defendant's use of a common pathway.

4.  About 12:40 a.m. on 25 April 2020, PW1 was washing the ground near the entrance of the House.  The defendant dashed out of his home holding a 35-cm long hammer in his hand.  He used the hammer to hit the metal panels surrounding the House numerous times whilst swearing.

5.  The defendant then walked past the metal panels and hit PW1's face with the hammer.  He chased after PW1 and attacked PW1 with the hammer 4 to 5 times. PW1 tried to ward off the defendant with his hands.  The defendant left the premises when PW1 shouted to his wife to call the police.  As he was leaving, the defendant swung the hammer at the metal panels a few more times.

6.  The incident was captured by CCTV.

7.  PC 10487 (PW2) arrested the defendant at the scene.  He surrendered the hammer to PW2. Under caution, the defendant claimed that PW1 hosed him with water; and he used the hammer to block PW1.  He did not intentionally assault PW1.

8.  As a result of the defendant's attack, PW1 sustained a laceration on his left face for which he received 4 stitches; an abrasion on his left shoulder; and tenderness over his left face, left shoulder, left forearm and neck.  He was treated and discharged on the same day.  This is Charge 1.

9.  About 10 dents were found on the metal panels surrounding the House.  The cost of repair was $3,000.  This is Charge 2.

Mitigation & Sentence

10. The defendant is 61 and has 2 conviction records, which included 1 "Common assault" offence dated 1978. He is married with 3 adult children. Defence counsel Mr. Shah informed me that the defendant and his family have been living together at Man Kam To Road for over 20 years. In order to avoid PW1, the defendant's children have moved away in June 2020 and are now residing at separate locations.

11. In mitigation, Mr. Shah has explained in details the grudges between the defendant and PW1. In gist, the defendant has been renting the land on which his home is built from PW1's father, who is still alive, for over 2 decades. PW1, who has no locus standi in the matter, takes the view that whatever amount the defendant has paid and/or has continuously paid PW1's father on an annual basis was insufficient consideration for the use of the land. Thus, the relationship between PW1 and the defendant deteriorated in 2016. The defendant alleges that PW1 has been causing nuisance and disturbance of different types to him and his family in the past few years.

12. Regarding the 2 charges, Mr. Shah submitted that PW1 has been causing nuisance to the defendant and his family "by water" for about a year prior to the present incident. In addition to pouring "dirty water" in brown colour on the common pathway leading to the defendant's home, PW1 has repeatedly "washed the ground" in front of the House with a water hose late at night, causing serious disturbance to the defendant's sleep. The defendant has lodged numerous complaints with the police, but PW1 did not desist from annoying the defendant.

13. Mr. Shah submitted that in the night of the incident, PW1 "washed the ground" in front of the House again. The defendant, who usually goes to bed at 10:00 p.m. due to his health problems, was awaken by the noise generated by PW1. Feeling fed up and frustrated, the defendant went to the House with a hammer intending to scare PW1 away. PW1, however, did not stop the water hose or return to his home. In the heat of the moment, the defendant lost his temper and committed the present offences.

14. I accept that this case probably arose from the defendant's prolonged frustration and out-of-control anger; and that the attack on PW1 was provoked by the disturbance caused by PW1 himself. PW1 has the freedom to "wash the ground" in front of the House at any time he wants, but doing so at midnight hours knowing that it would cause disturbance to his neighbours is plainly despicable and inconsiderate. In my view, doing such acts repeatedly constituted a form of hostile provocation.

15. On the other hand, it is also plain that no one is allowed to take the law into his own hands. Even if the defendant was fed up, frustrated and pushed to the limit of his tolerance, there must have been lawful means for him to resolve the matter. What the defendant did was ferocious and uncivilized. Notwithstanding my sympathy, I have no choice but to punish him for what he did.

16. Fortunately, there is no suggestion that PW1 has sustained any permanent disabilities as a result of the defendant's attack; he was treated and discharged on the same day. Hitting someone on his head with a hammer, however, could be fatal. Serious injuries and even death must have been foreseeable by the defendant at the time of launching the attack.

17. This is indeed a sad case. Sentencing of "Wounding 17" offences is case specific and there is no tariff as such; however, sentences in the range of 3 to 12 years' imprisonment are by no means uncommon. I would not increase the starting point because of the defendant's dated similar conviction. I would, however, treat the prolonged provocation brought about by PW1 as a strong mitigating factor, which justifies a lower than usual starting point. I adopt a starting point of 21 months' and 3 months' imprisonment respectively for Charges 1 and 2. With the timely guilty pleas, the sentence for each charge is reduced to 14 months and 2 months respectively. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 14 months' and 2 months' imprisonment respectively.

18. Having considered the totality principle, I order the sentence of both charges to run concurrently.