HKSAR v. WONG FU KIT

DCCC 442/2018

[2019] HKDC 282

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 442 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap 212. Particulars are that he on 24 January 2018 outside ground floor, Cheuk Ping House, Long Ping Estate unlawfully and maliciously wounded Wong Ying Keung with intent to do him grievous bodily harm.

Summary of facts

2.  The victim is the defendant’s elder brother.  They had a poor relationship and the defendant had moved out from the family home.

3.  The defendant has a girlfriend, Ms. Kwong.

4.  At around 4pm on 24 January, Ms. Kwong was with her friend while she ran into the victim at Long Ping Estate.  The victim started to scold Ms. Kwong for ruining his relationship with his brother.  Ms. Kwong called the defendant and he heard the scolding over the phone.  The victim scolded Ms. Kwong for two more times before she and her friend left.

5.  Ms. Kwong and her friend met up with the defendant at 4:45pm in Yuen Long and they took a taxi to Long Ping MTR station.

6.  When they were walking back to the defendant’s home, they saw the victim sitting on a bench outside Cheuk Ping House.  The victim left the bench and walked over to them and said to Ms. Kwong “when did I scold you.”

7.  It was at this juncture that the defendant suddenly started to attack his brother.  The defendant punched him in the face while holding a pair of scissors and then pushed him to the ground when he stabbed him in his head and face with the scissors 4 to 5 times.

8.  The victim managed to stand up but the defendant continued his attack while they struggled, punching him in the face around 5 times while holding the scissors in his fist.

9.  The victim said to the defendant that he was going to die, asking if the defendant was trying to kill him.  Ms. Kwong snatched the scissors away and asked the defendant to stop.  The victim ran and the defendant gave chase, but was eventually subdued by passersby.

10.  There were 3 eyewitnesses to the attack and they each captured a video of the incident on their mobile phones.

11.  The victim was conscious when the police arrived, but with blood all over his head and face.  He was admitted to Tuen Mun Hospital and was found to have suffered multiple lacerations at his eyelid, nose, lip, ear, neck and back of his head, together with right eye subconjunctival hemorrhage.  There were also laceration wounds to his left second finger web space, left middle finger, and left index finger with tendon tear. He was hospitalized for 5 days.

12.  The defendant was arrested and admitted under caution that he attacked his brother for scolding his girlfriend with a pair of scissors he had just bought.

13.  According to staff of the stationery store at Sun Wai Tsuen in Yuen Long, they sold a pair of 16 centimeters long scissors at 4:41pm, which was a few minutes before the defendant got on the taxi that took him and his girlfriend to Long Ping MTR station.

14.  The WhatsApp records on the defendant’s mobile phone show that the defendant had sent two messages to Ms. Kwong at 4:01pm the same day, saying that if anything should happen to him, she should take care of herself.

15.  Two video recorded interviews were conducted with the defendant.  In gist, he recalled in the interviews how he heard over the phone the argument between his brother and his girlfriend at around 3:30pm, how he took a bus from Tung Chung to Yuen Long to meet up with Ms. Kwong and her friend, how he bought the scissors before meeting up with them and put the scissors in his pocket, how the victim started scolding his girlfriend outside Cheuk Ping House and how he had always hated his brother.

16.  The defendant described how he took the scissors from his trousers pocket and used them to first block the victim’s hand and then to stab him in the head.  The defendant said he sat on his brother after he had fallen and continued to stab him in the head.  When his brother managed to get up and grabbed hold of the defendant’s hand, the defendant punched him in the face.

17.  As for the WhatsApp messages to his girlfriend, the defendant explained that he thought his brother may show up near his home and had expected a fight may ensue, so he texted his girlfriend to tell her to take care of herself.

Mitigation

18.  The defendant is 21 years old.  He was 20 at the time of the attack.

19.  Mr. Law, in his very helpful submissions, told the court about the background of the defendant’s relationship with his brother the victim.  At the request of counsel, a probation officer’s report and a psychologist report were ordered to be prepared.  Probation is recommended.

20.  According to what the defendant’s mother had told the probation officer, the victim was a drug user and had been violent towards her over the years.  The defendant is the person who would stand up against him to protect her.  It was especially the case after their father had passed away in 2016.  In fact, the situation had gotten so serious that the mother had to call the police when she was assaulted by the victim on a day in January 2018.  The victim was charged, convicted, and sentenced to 4 months’ and 4 weeks’ imprisonment in April the same year for the attack.

21.  Over the years and against the background of the victim’s drug use and abuse of their relationships, the defendant had become estranged with the victim, an elder brother whom he used to look up to and regarded as a father figure.

22.  As to the scissors, it is Mr. Law’s submissions that the defendant did not buy them for the purpose of carrying out the attack.  Web browsing history are produced to show that the defendant had been researching into how to construct a head gear used by him and Ms. Kwong’s favourite Disc Jockey, whose concert they had gone to the night before.

23.  It is the defendant’s case that the scissors were bought for making the head gear since the scissors they had at home was not sharp enough and because the pointed objects at home had mostly been put away to avoid being used by the victim when he threw his tantrums.  It so happened that when the defendant had lost his self-control and decided to attack his brother, he had those scissors he just bought on him and had foolishly used them in the assault.

24.  Mr. Law informed the court that the victim has forgiven the defendant.  They both regret their breach of public order.  Since the incident, their relationships had improved and there is better understanding between the brothers.  The victim confirmed through Mr. Law that he has fully recovered and is leading a normal life.  Mr. Law also informed the court that the victim himself had asked the defendant to buy a pair of scissors for cutting up food for their mother who had lost most of her teeth.  This is to be considered together with the defendant’s case that he did not buy the scissors specially for the attack.

25.  Lastly in mitigation, Mr. Law urges the court to consider the case of Attorney General v Ng Chak Hung, CAAR 1 of 1994, where the respondent was sentenced to probation for a similar offence.  I will deal with this case below.

Sentencing considerations

26.  The maximum sentence on conviction upon indictment for the offence of wounding with intent is that of life imprisonment.

27.  Wounding under section 17 is declared to be an excepted offence by Schedule 3 of the Criminal Procedure Ordinance, Cap 221 and so cannot be dealt with by way of a suspended sentence.  Furthermore, section 109A of the same Ordinance does not apply since the defendant is not under 21 years old at the time of being sentenced, and custodial sentence need not be the last resort.

28.  There is no sentencing tariff for this offence, but sentences usually range from 3 to 12 years’ imprisonment depending on the facts of each case.

29.  As mentioned above, Mr. Law relies on the Court of Appeal case of Ng Chak Hung in support of dealing with the defendant by way of a probation order.  There the respondent attacked the victim in his sleep with a pair of scissors.  When the victim awoke and struggled and grabbed the scissors, the respondent took a fruit knife from his mattress and continued to stab the victim.

30.  It is not clear from the judgment what the relationship was between the respondent and victim, except that it was the victim who had brought the respondent to Hong Kong in 1974 when the latter was 11 years old.

31.  The respondent had been in continuous employment since leaving school at an early age.  20 years after coming to Hong Kong, in 1994, he was working as a loader in a transportation firm earning $8,000 per month.

32.  In contrast to the respondent’s clear record, the victim had spent “a great deal of time” in prison.  After the victim came out of prison having served his latest sentence, he had nowhere to stay and ended up imposing himself on the respondent, eventually driving him out of his own home.

33.  The respondent returned a few weeks prior to the incident.  There was constant friction and irritation between them.  The respondent said the victim borrowed money from him and drank to excess.

34.  On the night of the attack, they quarreled and the respondent was left “fuming”, eventually leading to the attack as described above.  The victim suffered multiple small wounds on his left upper chest, arms, side hip and thigh.  These were sutured and he was discharged from hospital after 2 days.

35.  Both the trial judge and the Court of Appeal took into consideration the unusual personal circumstances of the respondent, as well as his mental well-being over the years.  The respondent was first diagnosed as suffering from schizophrenia in 1986 and had continued with out-patient treatment until September 1992.  He then stopped attending because he considered himself well and the headaches which prompted him to go to the doctors in the first place had stopped.  5 days after the commission of the offence, the respondent had returned to the psychiatric clinic of his own volition.

36.  The trial judge imposed a suspended sentence on the respondent, which she, in law, was not allowed to do since the offence is an excepted offence.  Upon review, the Court of Appeal recognized that while it is unusual to deal with a section 17 offence by way of a probation order, they found that in light of all the circumstances of the case and “in particular the nature of the offender himself”, the interests of justice, the interests of the offender and of society in general would be served by such an order, and they did so order.

37.  In our present case, the defendant’s family situation cannot be said to be exceptionally bad.  Disagreements between family members living in close proximity is the norm rather than the exception in a highly strung society such as Hong Kong.  The defendant was not suffering from any psychological or psychiatric illnesses.  The personal circumstances of the defendant is nowhere near as tragic, traumatic or exceptional as those of the respondent in Ng Chak Hung.  The cases must be distinguished.

38.  The Court of Appeal in the case of HKSAR v Chan Chun Tat (陳駿達), CACC 317/2012 identified factors to which a court will have regard in determining the gravity of a section 17 offence, especially in the context of domestic violence:-

“49. Consequently, many of the factors to which a court will have regard in determining the gravity of a section 17 offence and the culpability of the offender will relate to the type of harm intended to be inflicted, the means by which that harm was inflicted and the circumstances generally surrounding the assault. Thus, without attempting to exhaustively identify all the relevant factors, the usual ones will be 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.

50. In arriving at an appropriate sentence the court will have regard not just to the need to punish the offender for his conduct, but also to the sentencing principles of deterrence, both general and individual, and, in appropriate cases, the need to denounce the resort to violence. Of course deterrence and denunciation are always important when there is resort to violence but there may be particular situations that call for greater deterrence, such as in triad gang or contract attacks, or more denunciatory sentences, such as in domestic violence cases.

51. In respect of the latter type of case the courts have long played a role in denouncing a resort to violence. People living together, whether they are husband and wife, parent and child or in any other relationship, inevitably suffer stresses from their work or personal life which may manifest themselves within the home environment in arguments or emotional outbursts. How people, within the privacy of their homes, resolve their problems is not usually a matter that concerns the courts; but the moment the law is broken by a resort to violence in order to solve such problems then the courts will become involved. By their sentences the courts must make clear that violence will never be regarded as an acceptable way of dealing with personal issues.” (emphasis added)

Aggravating features

Premeditation

39.  In our present case, I find that there is premeditation in the defendant’s commission of the offence.

40.  The defendant overheard the argument between his brother and Ms. Kwong at 3:30pm.  The contents of the WhatsApp messages that he sent to Ms. Kwong at 4:01pm, telling her to look after herself should anything happen to him, indicate that the defendant must already have contemplated an attack on his brother.

41.  Through the subsequent sequence of events, that is to say, the defendant taking a bus from Tung Chung to Yuen Long, buying a pair of scissors there before meeting up with his girlfriend, and then taking a taxi together to go to Long Ping Estate, the only reasonable inference must be that the defendant had intended to carry out his plan to attack his brother.

42.  I have considered whether what the defendant had said about the scissors being bought for making of the head gear and how it was never in his plan that they would be used in the attack.  I find that even if that was the case it would not lessen the seriousness of the use of the scissors in the attack.

43.  The WhatsApp messages were sent before the purchase of the scissors.  The contents of the message indicate that the defendant was expecting something very serious to happen.  The only reasonable inference must be that he had already decided to attack the victim by that time.  He knew he was going to carry out the attack.  The fact that he might have bought the scissors with another use in mind does not absolve him from using the weapon in the attack.

44.  Furthermore, as can be seen in the video footages, the defendant had held on to the scissors after the first stage of his attack and was chasing the victim around while holding the scissors.

45.  I find that the attack by the defendant on the victim using the pair of scissors a premeditated move, motivated by the defendant’s hatred for his brother and possibly the desire to avenge his girlfriend.  These are aggravating factors.

The nature of the attack

46.  The attack involved the use of a pair of scissors as weapon.  The defendant stabbed his brother in the head, leading to extensive injuries to his face.  Any attack to the head must be viewed gravely by the court given the possibility of serious harm being caused.

47.  The fact that the defendant had continued to attack the victim after he had fallen to the ground, and the fact that the defendant had aimed his attack to the victim’s head are both aggravating factors.  It is fortunate that the victim did not suffer more serious injuries.

48.  In fact, but for the brave intervention of Ms. Kwong and the passersby, the attack might have continued since the defendant was still chasing his brother when being subdued.

49.  Video footages of the latter part of the attack show how the defendant continued to chase the victim around while the victim’s face was already covered in blood, with Ms. Kwong trying her best to stop him.

50.  I was told that the victim had recovered from the injuries and that there is no permanent damage.

51.  I was also told that the victim had forgiven the defendant.  Although the fact that a victim has forgiven the attacker is a factor to be considered, in cases of domestic violence, forgiveness by the victim should not be given undue weight.

52.  The defendant had used a pair of scissors to stab the head of someone repeatedly in broad daylight and in a public place.  However much sympathy I may have for the defendant and his family situation, and however badly the victim had behaved previously towards the defendant, his mother and his girlfriend, what the defendant did was very wrong and the only appropriate sentence is that of an immediate custodial sentence.  As mentioned above, the sentence must send the message that the courts will never condone the use of violence to resolve personal issues.

Starting point

53.  Taking into consideration all the circumstances of the commission of the offence, I find that a proper starting point is that of 39 months’ imprisonment.

54.  The fact that the defendant and his brother had never been on good terms, or the fact that his brother had scolded Ms. Kwong are not mitigating factors.  No one should be allowed to think that violence is ever a permissible or excusable mean to resolve personal relationship issues.

Mitigating factors

55.  Having said that, I find that the previous abusive conduct of the victim towards the defendant’s mother and the defendant’s girlfriend are such that there should be a reduction in sentence to reflect the court’s recognition of the defendant’s frustration in failing to protect his mother, which, to some extent, must have contributed to the defendant’s commission of the offence.

56.  Furthermore, according to the Probation Officer, the defendant has been in steady employment with a hardworking attitude.  His employer is willing to re-employ him upon his release.  These are strong indicators that the defendant has a good prospect of rehabilitation and may still have much to contribute to society.

57.  Lastly, the fact that the victim had forgiven the defendant and that their relationships had improved are also factors relevant to sentencing.  They indicate that the impact of the attack was not entirely negative on the family.

58.  Taking into consideration the said mitigating factors, the defendant’s age, together with the psychologist’s finding that the risk of re-offending is not high, I find that there should be a total reduction of 9 months’ imprisonment.

Final Sentence

59.  The defendant is sentenced to 20 months’ imprisonment after granting him the full one-third discount for his plea of guilty.