HKSAR v. CHUI SIU LUNG

DCCC 1197/2023

[2024] HKDC 2117

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1197 OF 2023

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REASONS FOR SENTENCE

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Charges

1.  The defendant pleaded not guilty to two charges, Charge 1 is wounding with intent on PW1, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap. 212.  Charge 2 is common assault on PW2, contrary to Common Law and punishable under section 40 of the Offences against the Person Ordinance, Cap. 212.  He was convicted on both charges after trial.  Since detailed account for the conviction can be found in my Reasons for Verdict, I set out the brief facts hereunder in so far as they are relevant to sentence.

Background

2.  The prosecution case, as accepted by me is that both the wounding and assault took place outside Block B, Beautiful Garden, No. 11 Chui Lok Street, Tai Po, on 17 April 2020. The victims of Charges 1 and 2 are PW1 Mr Chan and PW2 Ms Chung respectively. In gist, on 17 April 2020 at about 10pm, the defendant, former boyfriend of Ms Chung (PW2), made a phone call to PW2 and they had a chat over the telephone, follow by a face to face chat at the scene.  PW2 thought the defendant has left after the chat but shortly thereafter, the defendant returned, shouted with angry words, bended forward his upper body inside PW1’s car, hit PW1 with a glass cup (Charge 1).  PW2 tried to pull the defendant but the defendant slapped her face and pushed her onto the ground (Charge 2).  PW1’s right face was bleeding.  At that time, PW1 was PW2’s boyfriend.  PW1 sustained injuries to his right face, diagnosis and descriptions include 3 laceration wounds. Suturing was done. 

Personal background of the defendant & mitigation

3.  The defendant is now aged 44.  He has received education up to form 4 level.  He worked as a construction worker before arrest.  He has a spent conviction for the offence of betting with bookmaker in 1994 for being put in probation. 

4.  In mitigation, Mr Allan submitted that firstly, there is prosecution delay.  Secondly, the assault arose out of lovers’ dispute.  Thirdly, there is no evidence of permanent injury and PW1’s wounds recovered well and there is no noticeable scars on his right face.  I adjourned the sentence for the prosecution to prepare a prosecution’s chronological table.  I also invite the parties to pay heed to the relevant case on prosecution delay: Chiu Chi Wing CACC 243/2012 and provide more examples of sentence involving lovers’ dispute resulting in assault.  

Sentence

5.  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.

6.  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:

(1)  the extent to which the assault was premeditated,

(2)  the reasons or motivation underlying the assault upon the victim,

(3)  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,

(4)  whether the assault was committed by the assailant alone or as part of a group,

(5)  the type of weapons employed,

(6)  the level of force or aggression and the persistence with which the assault was pressed home,

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

7.  In HKSAR v Tung Pak Fai [2022] HKCA 1470, the Court of Appeal summarized the relevant factors when sentencing wounding with intent case:

“21. The relevant factors relevant to sentencing in wounding with intent cases were set out in HKSAR v Chan Chun Tat and endorsed in HKSAR v Jatinder Singh. These include 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, and 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 (at paragraph 49, Chan Chun Tat). The list is not meant to be exhaustive but it purely demonstrates that the culpability of an offender of a wounding with intent charge 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. Given the many imponderables as to why an assailant failed to achieve the injuries intended by him, the actual injuries caused is only one of the myriad of factors to be take into account. The gravamen of the offence is in the intent to inflict really serious injuries, which is the same intent as that required for murder. The lack of serious injuries does not necessarily reduce the gravity of the offence or offset the other aggravating factors.”

8.  In HKSAR v Ma Tik Lun Dicky CACC 112/2013, the Court of Appeal summarized the aggravating factors for sentencing wounding with intent cases as follows:

“41. … [T]he aggravating factors for this type of wounding case are: (1)  the defendant was the principal offender; (2)  the assault was committed in company; (3)  the assault was unprovoked; (4)  the assault took place in a public place; (5)  the assault went on after the victim had fallen down; (6)  the assault went on after the victim became unable to defend himself; (7)  the victim suffered serious and lasting injuries; (8)  at the police interview, the defendant misled the police as to the facts, indicating a lack of remorse…”

9.  Applying the above sentencing consideration into the present case, firstly, there is no evidence of premediated plan.  I treated this case as coincident encounter and the defendant committed the offence at the spur of the moment.  Secondly, I accept that this case might have arisen from the defendant's jealousy and anger.  Had the defendant been able to control his temper, the assault could have been avoided. It seems that he just picked up the glass cup from nearby and hit PW1.  While PW1’s injuries was not relatively serious in this category of offence, it is relevant to consider the pain and suffering as well as the agony arising from this traumatic experience.  Having said that, I note that there is no permanent injury and PW1’s face did not exhibit noticeable scars as at the time of the trial.  Lastly, although the defendant’s spent conviction dated back in 1994 and it is said to be as if it is a clear record.  But case law suggests that clear record may not be considered as mitigating factor in serious offences calling for deterrent sentence.  

10.  Sentencing of wounding offences is case specific and there is no tariff, by reason of the matters aforesaid, I adopt a starting point of 2.5 years' imprisonment. 

Prosecution’s delay

11. In Chiu Chi Wing, the Court of Appeal considered and applied the seven factors identified by Buss JA, which were stated not to be intended to be exhaustive or inflexible, were:

“ First, delay is not, of itself, a mitigating factor.

Secondly, delay will not ordinarily be a mitigating factor if it has been caused by difficulties in detecting, investigating or proving the offences committed by the offender, and the period of the delay is reasonable in the circumstances.

Thirdly, delay will not ordinarily be a mitigating factor if it is caused by the offender’s obstruction or lack of co-operation with the State, prosecuting authorities or investigatory bodies, but the offender’s reliance on his or her legal rights is not obstruction or lack of co-operation for this purpose.

Fourthly, delay will not ordinarily be a mitigating factor if it results from the normal operation of the criminal justice system, including delay as a result of the offender or a co-offender exercising his or her rights; for example, interlocutory appeals and other interlocutory processes.

Fifthly, delay may be conducive to the emergence of mitigating factors; for example, if, during the period of delay, the offender has made progress towards rehabilitation or other circumstances favourable to him or her have emerged.

Sixthly, delay (not being delay of the kind described in the second, third and fourth guiding principles)  will ordinarily be a mitigating factor if:

(a)  the delay has resulted in significant stress for the offender or left him or her, to a significant degree, in ‘uncertain suspense’; or

(b)  during the period of delay the offender has adopted a reasonable expectation that he or she would not be charged, or a pending prosecution would not proceed, and the offender has ordered his or her affairs on the faith of that expectation.

Seventhly, delay caused by dilatory or neglectful conduct by the State, prosecuting authorities or investigatory bodies may result in a discount of the sentence that would otherwise be imposed on the offender, if the court thinks it an appropriate means of marking its disapproval of the conduct in question.”

12. Applying the above factors into the present case and look into the prosecution’s chronology[1], the defendant was arrested on 3 May 2020 and he was charged on 1 December 2022, it took about 2 and a half years until prosecution was laid. However, there is about a 6 months’ period that the defendant exercised his right to dispute the arrangement of ID parade, with no fault on the prosecution. Taking to account the normal operation of investigation and legal advice, say one year, it seems that there is a delay of about one year. I therefore make a reduction of 2 months, the sentence for Charge 1 is 2 years and 4 months’ imprisonment.

13. Regarding Charge 2, the usual sentence for common assault is financial penalty or short imprisonment. I adopt a starting point of 6 weeks’ imprisonment and reduce it to 5 weeks for prosecution delay.

14. Apart from this, I see no other mitigating factors which warrant any further reduction.

15. As the facts of Charges 1 and 2 are overlapping, I order sentence on both charges be made concurrent, the total sentence is 2 years and 4 months’ imprisonment.

Appendix 1: Prosecution’s chronology

Date	Event
2020-05-03	D was arrested
2020-10-19	PW1 was first contacted by the Police for the arrangement of an ID parade
2020-12-18	The 1st ID parade was held but was eventually cancelled by the OC parade as the requests made by the Defence Counsel was considered unreasonable
2021-05-31	The 2nd ID parade was held but was eventually cancelled by the OC again as the Defence Counsel was dissatisfied with the arrangement of the actors
2022-04-21	D was temporarily released as the Police wanted legal advice from DOJ on whether to charge D
2022-07-25	PW1 and PW2 confirmed that they would pursue the case and were willing to testify
2022-07-28	Photos regarding PW1’s recovery were taken in Tai Po Police Station
2022-08-18	Request for legal advice sent by police to DOJ
2022-09-27	Legal Advice from DOJ required police to seek further statement from PW2 clarifying details and resubmit for their advice before charging D
2022-10-24	Further statement was taken from PW2 by police pursuant to Legal Advice from DOJ
2022-10-30	Further statement of PW2 submitted to DOJ
2022-12-01	DOJ recommends charges against D and trial in DC
2022-12-23	Further statement was taken from PW2 again to clarify ambiguities
2023-03-15	D was put on watch/wanted list as multiple attempts were made to reach him but to no avail
2023-10-12	D was arrested at Lo Ma Chau Boundary Control Point
2023-10-14	D was charged
2023-11-17	Instructions to Plea Day Counsel signed by SPP
2023-11-24	Case transferred to DC
2023-12-05	Summary of Facts and Schedule of Prosecution witnesses signed by SPP
2024-02-20	Mentioned in DC – case set down for 2-day trial on 25 and 26 Nov 2024
2024-04-09	Request to admit facts sent to Solicitors for D Request sent to police to prepare case materials
2024-04-22	Response from Solicitors from Defence agreeing facts