HKSAR v. LEE HAK LOY

DCCC 997/2017

[2018] HKDC 252

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 997 OF 2017

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REASONS FOR SENTENCE

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1.  The relationship between two nursing home residents, both in their 80s, turned sour which led to one chopping the other in the head as he slept.

2.  The defendant aged 80, being the attacker, pleaded guilty to one count of wounding 17 and an additional charge of failing to produce proof of identity on demand; the victim is two years his senior.

3.  They are residents of a nursing home in Yau Ma Tei and occupy beds next to each other. The defendant does not like the victim at all because he reckons that the victim has been badmouthing him behind his back so much so that other residents start avoiding the defendant.

4.  The situation finally comes to a head on 20 September 2017 – in the small hours of the night, the defendant picks up a chopper from the kitchen, goes over to the victim who is sleeping at the time, deals him at least a few chops to the head and then left the nursing home.

5.  The victim is hospitalised and discharged on the same day with these injuries – four oozing laceration wounds over the scalp with no fractures of the skull.

6.  Three days later, the defendant, who was stopped in the streets of Yau Ma Tei by police for an ID check, was unable to produce his ID card for he had left it behind at the nursing home. He also made a statement to the effect that he had chopped and injured someone in the nursing home. Consequently, the defendant was taken into custody.

7.  The defendant has 5 previous convictions none of which is of any violent nature. His last conviction is shoplifting back in 2015 for which he was given a suspended sentence for a period of one year.

8.  The defendant is still single. Apart from being diabetic and having high-blood pressure, he is also suffering from bladder cancer which, according to the medical report, the defendant has refused to undergo surgery or to receive radiotherapy. He is currently taking medication for his condition.

9.  Counsel for the defendant reiterated that it was the victim who had badmouthed the defendant which led to the attack, and stressed that the victim did not suffer any permanent injuries as a result, and in fact had fully recovered.

10.  Defence Counsel has submitted a number of authorities on sentence and said that given the fact of the present case and the circumstances of the defendant, it would attract a starting point much lower than 2 years.

11.  You attacked someone who was in a defenceless situation, i.e. when he’s asleep, that was abject cowardice. This was not a spur-of-the-moment attack immediately following an altercation or anything like that; in fact, you carried out the attack in a calm manner - you must have planned it well beforehand and waited for the right moment to strike.

12.  I have examined the weapon you used, it was a sharp knife; a lethal weapon, to say the least. With a weapon like that you could do serious harm to others. The fact that the victim did not suffer terrible injuries has nothing to do with you, it was sheer luck on his part. You aimed at his head, the vital part of a person - clearly in so doing you had every intent to hurt him badly.  All of the above call for a deterrent sentence.

13.  There are no tariffs as such for this type of offence, although the higher court did suggest that a term between 3 and 12 years be the usual range of sentence, it was never meant to be a sentencing tariff. To put it in another way, the court is not obliged to impose 3 years’ imprisonment as the minimum term. Everything turns on the particular facts of an individual case.

14.  The Appellate Court in Wong Luk Sau CACC 2/2012 said in paragraph 18 of the judgment that:-

“For the offence of wounding with intent, the circumstances of the offence and the background of the offenders differ from case to case, and other decided cases are, in our view, of limited reference value.”

15.  Having considered the facts of the instant case, paying particular regard for the defendant’s old age and poor health, for the offence of wounding I take 24 months as the starting point.

16.  Insofar as his plea of guilty is concerned, it is a timely one so he is entitled to a full one-third discount. Giving the appropriate deduction, the starting point is reduced to 16 months.  

17.  There being nothing to justify a further reduction in sentence, the defendant is therefore sentenced to 16 months’ imprisonment. As for his failure to produce proof of identity, he is fined $200, 7 days to pay.