HKSAR v. FONG KIN WAH

 DCCC1381/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1381 OF 2010

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a charge of unlawfully and maliciously wounding Mr Li Kam-tong with intent to do him grievous bodily harm. The incident giving rise to the charge occurred on 27 November 2010 on Hennessy Road in Wanchai.

2.  The facts admitted by the defendant state that the victim, PW1, started to run a restaurant called Kwan Kee in Bowrington Street, Wanchai in 2005 and employed the defendant as a chef. Four years later, the victim operated another restaurant in Dongguan in China and employed the defendant as the person in charge of that new restaurant. That venture was not successful, and in August 2010, the restaurant in Dongguan was closed down and the defendant was owed a salary of $35,500. Despite repeated demands from the defendant, PW1, the victim, did not settle the debt.

3.  On the day of the offence, at about midnight, the victim was at his Kwan Kee Restaurant when he received a phone call from the defendant, asking the victim to settle the debt. The victim said he could only settle the debt the following week, and the defendant threatened to break his leg, and the victim told the defendant to come over and then hung up the phone.

4.  About 10 minutes later, the victim was waiting at a bus stop outside No. 400 Hennessy Road when a motorcar stopped in front of him and the defendant got out of the vehicle. The defendant approached the victim with a golf club in his hand, and without saying a word, he used the golf club to hit the victim’s legs several times, causing the victim to fall to the ground. The defendant kept on assaulting the victim with his golf club, and the victim warded off the blows with his hand. Police officers patrolling the area became aware of the incident and stopped the defendant and arrested him.

5.  Under caution, the defendant said he wanted to teach the victim a lesson by beating his lower legs with the golf club because of the outstanding salary. Under caution at the police station, the defendant said that the victim owed him money and said that he would only pay him later on. When he drove to Hennessy Road, he saw the victim and became agitated. He alighted from the car, took out the golf club to scare the victim. He claimed that the victim rushed towards him and grabbed hold of the golf club, and during the struggle, the victim uttered foul language. And because of that, he used the golf club to hit the victim’s leg twice.

6.  Medical examination showed that the victim sustained lacerations over his right hand and both shins, and there were fractures over the victim’s right fibula and his tibia. A medical report that was submitted to court dated 27 November, same day as the incident, would show that the X-ray revealed a fracture proximal of the tibia and fibula of the right leg. The victim was admitted to the Department of Orthopaedics and Traumatology for management.

7.  Although this is a guilty plea, the victim has attended court today and through the prosecutor, I am told that he experiences pain in his leg if he walks quickly.

8.  The defendant is 49 years of age and has a clear record. He is married and supports his mother who is 86, and he and his wife have a son who is aged 8.

9.  I am told that in relation to this offence, the defendant has repeatedly asked the victim to pay him the back wages, but the victim always made up some excuses and the defendant believed that the victim was deliberately refusing to repay the debt. And that on the night in question, he was provoked by the victim using foul language towards him.

10.  I am told that in relation to the incident, the golf club was kept in the boot of the defendant’s car because he lives in the Yuen Long area and when he parks his car at night, he is often harassed by dogs. He uses the golf club to ward off the dogs.

11.  I am told that the defendant received a few years of education on the mainland, and it is accepted by his counsel that he should have taken civil proceedings to recover the debt but the defendant has little knowledge of these matters in Hong Kong.

12.  Placed before the court, there is a letter from the defendant asking for a lenient sentence. Somewhat unusually in this type of case, there is also a letter from the victim. The victim says he has known the defendant for four to five years and they have had a co-operative relationship prior to this debt arising. With regard to the incident itself, the victim believes that the defendant acted on impulse and asked for a lenient sentence. At the time of the offence, the defendant was unemployed.

13.  It is urged upon me in mitigation that there is no triad background with this offence, and the injury sustained for an offence of this kind is not of the worst type. Counsel has placed before the court a 1996 case involving a case of wounding with intent where a sentence of 3 years was found appropriate. There are no guidelines for this sort of case, and every case depends on its particular facts.

14.  The defendant clearly had lost control on this occasion. He is 49 years of age and has a clear record. However, this sort of offence is serious. He used a weapon on another person, and it is fortunate, given the nature of the weapon that he chose to use, that the injuries were not more serious.

15.  Having taken into account all the circumstances and in particular the letter from the victim in this case, I have decided that an appropriate starting point would be a sentence of 2 and a half years’ imprisonment. The defendant will be given credit for his guilty plea, so that sentence will be reduced to a sentence of 20 months.