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DCCC 365/2019
[2020] HKDC 197
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 365 OF 2019
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HKSAR |
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CHAN YUK WA, KENT |
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| Present: |
Mr Frederic Whitehouse, counsel on fiat, for HKSAR.
Mr David Boyton instructed by Y.K. Lau & Chu, assigned by the Director of Legal Aid, for the defendant |
REASONS FOR SENTENCE
1. The defendant pleads guilty to one charge of wounding Wong Yiu, contrary to section 19 of the Offences against the Person Ordinance, the maximum sentence for which is 3 years’ imprisonment[1].
2. Full particulars of the offence are set out in the facts admitted by the defendant. In summary in late August 2018 the defendant broke up with his girlfriend Ms Kong. Mr Wong Yiu then became the boyfriend of Ms Kong.
3. After the break up the defendant demanded Ms Kong to repay the living subsidies he had given her before. Ms Kong being unable to repay the money allowed the defendant to take away 200 lipsticks, which belonged to Mr Wong, as security for payment.
4. At about 2 p.m. on 19 January 2019 Ms Kong, Mr Wong and Mr Shum, a friend, went to the defendant’s home to recover the lipsticks. When the defendant opened the door they noticed he had what appeared to be the handle of a knife hidden beneath his clothing near his waist. Mr Shum then started to video the incident with his mobile phone.
5. When Mr Wong demanded the return of the lipstick the defendant asked Ms Kong to enter his home alone to talk. When Ms Kong hesitated the defendant pulled her inside. Mr Wong immediately pulled Ms Kong back and again demanded the return of the lipsticks.
6. A dispute occurred and in the heat of the argument the defendant took out a “knife”from his waist and struck it towards Mr Wong. Mr Wong blocked the attack with his hand causing a cut to the palm of his right hand resulting in bleeding. The defendant then chopped the left side of Mr Wong’s forehead and the left side of his chin.
7. When his face began to bleed Mr Wong left together with Ms Kong. Mr Shum had already left on seeing the defendant take out the “knife”at which time he made a report to the police.
8. The defendant threw the “knife” out of the kitchen window and fled from his home[2]. The police later recovered the knife outside where the defendant lived[3].
9. At about 6:35 p.m. the same day the defendant surrendered to the police. Under caution and in a subsequent video recorded interview the defendant, inter alia, admitted that when Mr Wong entered his home causing chaos he produced a fruit knife to scare Mr Wong; he had hidden the blade because Ms Kong had forewarned him she would bring some people to demand compensation; and that he took out the blade to warn Mr Wong and accidentally wounded Mr Wong during a struggle.
10. Mr Wong was admitted to the Alice Ho Miu Ling Nethersole Hospital. Medical examination revealed laceration over the left side of the forehead; laceration of the right hand and swelling over the right anterior leg. Mr Wong refused suturing of the lacerations and was discharged after dressing was completed[4].
11. Photographs of Mr Wong’s injuries have been submitted to court[5]. Mr Whitehouse informs the court that Mr Wong has made a full recovery.
Mitigation
12. In passing sentence, I have carefully considered the oral and written submissions of Mr Boyton, in particular that the defendant has a history of drug dependence which has led to mental and behaviour disorder[6].
13. I have read the mitigation letter written by the defendant and the letters written by the International Social Service and the Evangelical Lutheran Church Social Services Enlighten Centre both commenting on the recent progress the defendant has made in terminating his drug abuse.
14. Although the defendant has a long criminal record I take into account that he has only one conviction for a violence related offence, namely possession of an offensive weapon in 1991 when he was sentenced to detention in a Detention Centre.
Sentence
15. There are no guidelines for offences of wounding contrary to section 19 of the Offences against the Person Ordinance. Mr Boyton submits that “the high end” starting point is between 8-12 months’ imprisonment[7].
16. I have considered the cases submitted by Mr Boyton in support of this submission. I do not agree that a 12 months starting point is the “high water mark”. Each case is decided on its own facts.
17. The defendant armed himself with a weapon prior to Ms Kong and Mr Wong going to his home. The defendant used a blade to attack the head of Mr Wong. Fortunately, the injuries were not more serious and Mr Wong has fully recovered from his injuries.
18. I am satisfied a starting point of 18 months’ imprisonment is appropriate.
Mental illness
19. Mr Boyton submits that by reason of the defendant’s mental disorder the defendant does not appear to know it was wrong to arm himself with a hacksaw blade and submits a lower starting point is appropriate[8].
20. In HKSAR v Chiu Peng, Richard[9] the Court of Appeal accepted that a court may properly allow a discount in sentence where a defendant is suffering from mental illness which played a part in the commission of the offence. The court said the justification for a discount in sentence by reason of mental illness was:
“…as a reflection of diminished criminality or culpability on the part of the accused who has committed a crime under an abnormal state of mind. He knew that it was wrong to commit the crime, but he did not appreciate that the commission was as serious as it was: the degree of culpability was thus lessened.”
21. In support Mr Boyton submits various medical reports which suggest the defendant was suffering from increased auditory hallucination at the time of the offence[10].
22. I note however the more detailed reports prepared by the psychiatrists at Castle Peak Hospital, who saw the defendant shortly after the offence was committed, state that the defendant claimed he was not acting under the instruction of voices or abnormal ideas at the time of the offence[11].
23. This is different to what the defendant told the psychiatrists who interviewed him in November 2019 some ten months after the commission of the offence. The defendant told the psychiatrists that he was worried as he believed his ex-girlfriend and her business partner were walking around his home and heard voices discussing how to harm him and give him a lesson[12].
24. What is clear however from all the reports is that the defendant has polysubstance abuse with history of drug-induced psychosis[13]. Whether or not the defendant was acting under the influence of psychiatric illness at the time of the offence this was self-induced by his abuse of drugs.
25. Whilst sympathetic to anyone suffering from mental illness I am satisfied in the circumstances a lower starting point is not appropriate on account of the fact that the defendant may have been acting under the influence of drug-induced psychosis.
26. Giving the defendant full credit for his plea of guilty reduces the sentence to 12 months’ imprisonment.
27. After his arrest the defendant was compulsory admitted to Castle Peak Hospital between 20 January 2019 and 1 February 2019[14]. The defendant was then placed on police bail. The defendant first appeared in court on 14 February 2019 when he was given bail.
28. The defendant was again admitted to Castle Peak Hospital on 14 October 2019 after a fire in his home[15]. On 14 November 2019 he was transferred to Siu Lam Psychiatric Centre on order of the court. The defendant was granted bail when he next appeared in court on 28 November 2019.
29. Mr Boyton asks the court to exercise its discretion to reduce the sentence by the time the defendant spent in Castle Peak Hospital. The defendant was admitted to Castle Peak Hospital by reason of his drug-induced psychosis. I find no grounds to reduce the sentence.
Surrender
30. Mr Boyton asks that the sentence be further reduced by reason of the fact the defendant surrendered to the police the same day.
31. The defendant’s identity and residence were known and therefore it would only have been a matter of time before the police would have arrested him.
32. In the circumstances I am satisfied a reduction of half a month is warranted.
33. The defendant is convicted and sentenced to 11 months and 15 days’ imprisonment.
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(D. J. DUFTON)
District Judge |
[1] Cap 212.
[2] Mr Whitehouse informed the court this sentence was taken from what the defendant told the police.
[3] See photographs 18 & 19 which show that the police recovered a blade. The witnesses described the defendant having a knife. On arrest the defendant said he used a fruit knife whereas in the video recorded interview he said he used a blade. In the interview the police referred to the blade as a knife. The prosecution accept that the defendant used a blade.
[4] See medical report of Dr Yuen dated 19 February 2019.
[5] See photographs 22 & 23. No photograph of the injury to the forehead was included. In court Mr Whitehouse submitted a black and white photograph of the injury to the left side of Mr Wong’s forehead. Mr Whitehouse gave an undertaking that a colour photograph would be sent to court.
[6] See §§2 & 5-8 of the written points of mitigation.
[7] See §§13 & 14 of the written points of mitigation.
[8] See §§3, 9, 10, 15 & 16 of the written points of mitigation. In court Mr Boyton referred the court to HKSAR v Chiu Wai Kan Vicken (No 2) [2011] 5 HKLRD 422.
[9] [2002] 1 HKC 401.
[10] See the medical reports of Dr Wong Ching Yee dated 27 June 2019 and Lui Chun Tat dated 2 July 2019;
[11] See §5 of the medical report of Dr Yeung Sze Wing dated 28 June 2019 and §6 of the medical report of Dr Hung Cheung Fat dated 18 July 2019.
[12] See §5 of the psychiatric report of Dr Jessica Lam dated 22 November 2019 and §7 of the psychiatric report of Dr Dorothy Tang dated 21 November 2019.
[13] See §7 of the medical report of Dr Yeung Sze Wing; §8 of the medical report of Dr Hung Cheung Fat; §7 of the psychiatric report of Dr Jessica Lam and §9 of the psychiatric report of Dr Dorothy Tang.
[14] See §5 of the medical report of Dr Yeung Sze Wing and §9 of the medical report of Dr Hung Cheung Fat.
[15] See §5 of the medical report of Dr Yeung Sze Wing and §9 of the medical report of Dr Hung Cheung Fat.
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