HKSAR v. CHEUNG WAI-KEUNG, RONALD

 DCCC1441/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1441 OF 2009

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Reasons for Sentence

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1.  The defendant has pleaded guilty to three charges. The 1st charge is one of burglary, the 2nd charge is one of assault occasioning actual bodily harm, and the 3rd charge which he has pleaded guilty to is Charge 4 on the indictment, which is wounding with intent, contrary to Section 17(a) of the Offences Against the Person Ordinance, Cap.212.

2.  The facts are that on 9 October he had entered the premises. The address is stated in the particulars and it is in Sham Shui Po, Kowloon. At the time he entered those premises as a trespasser and whilst he was in those premises the occupants came home and one was assaulted and the other was wounded.

3.  The facts reveal that a Miss Wong and her boyfriend were living in the room of the premises and they had left for work at 10.30 am on 8 October.

4.  At around 12.20 am on 9 October Miss Wong had returned to the premises and entered her room with her keys. She found the room had been ransacked and when she turned around to shut the gate to the room somebody splashed some liquid on her face. The victim was shocked and fell onto the floor. The defendant, then holding an 8-inch-long knife, put it against the victim’s neck. He told Miss Wong to get up from the floor and threatened to harm her if she did not do what he said.

5.  The victim was led to the bed, and after she sat on the bed, the victim was told to blindfold herself. Then the defendant tied her wrists up with a plastic strap. During the tying up of her wrists the victim struggled and the defendant then hit Miss Wong’s head two to three times with the handle of the knife and told her not to struggle otherwise he would harm her. The defendant then pushed the victim to the bed and then the victim lay prone on the bed.

6.  At that time the victim said she heard the defendant ask her many questions but she could not understand what he was saying. The victim said she was very scared and the defendant continued to talk to himself and was walking back and forth inside the room.

7.  Later he gave the victim a cigarette. Then after the victim finished with the cigarette the defendant covered her mouth with an adhesive tape.

8.  Subsequently her boyfriend, a Mr Wong, returned to the room at about 3.35 am that morning. When he entered the room he was hit on the head with a hard object for two to three times from behind. He turned around and saw the defendant holding a chopper which subsequently he said belonged to him. The defendant swung the chopper at him and Mr Wong fended off the chopper with his arms.

9.  Mr Wong tried to run from the room but the defendant continued to swing the chopper at him. The defendant told Mr Wong not to leave and pointed the chopper at him. The chopper was pointed at Mr Wong’s neck. He was told to sit on the floor. When Mr Wong was seated on the floor Mr Wong said the defendant continued speaking nonsense and swearing at him.

10.  After about 15 minutes Mr Wong tried to escape and tried to snatch the chopper from the defendant. There was a struggle and then the defendant fled the flat. Mr Wong untied Miss Wong and then a report was made to the police.

11.  At about 5.11 am on the same day a Madam Li, who was working near the back staircase in Tai Nan Street, Sham Shui Po, heard an unknown male, later known to be the defendant, crying for help. Madam Li then made a report to the police.

12.  The police arrived and saw the defendant sitting on the floor in the back staircase and he had bloodstains and brown-coloured stains on his shoes and abrasions on his wrists. The defendant claimed to the police he had consumed some chemical and he was sent to the Caritas Medical Centre for treatment.

13.  After the defendant was treated the defendant was arrested and cautioned.

14.  A chopper had been found at the main gate of the building where the defendant was found later in the back staircase. A knife which did not belong to either Miss Wong or Mr Wong was seized from the top of a plastic shelf in Room A and a cigarette butt was also seized from the floor of the toilet of Room A. A hammer which did not belong to either of the victims was found at the gate of Room A. The defendant’s DNA was found on the items recovered and Mr Wong’s DNA was found on the defendant’s left shoe.

15.  Both victims received medical treatment at the Caritas Medical Centre. Miss Wong was found to have mild superficial abrasion over bilateral wrists, mild erythema over upper back and light bruises over bilateral knees. She was discharged on the same day. Mr Wong had a 3 centimetre oblique cut wound on his right forearm dorsal surface. The wound was deep to the subcutaneous layer with no associated injury. He was treated and discharged on the same day.

16.  The defendant was also examined by a doctor and his oral cavity was found to be clear without any wounds. There were some superficial linear abrasions on his back and bilateral leg shin areas.

17.  In a subsequent identification parade, Mr Wong identified the defendant as the attacker.

18.  There were no financial losses suffered by either victims and there was no prise mark on the gate of Room A.

19.  The defendant is aged 42 years. He has a previous record, a minor record compared to these present offences, and those were not similar.

20.  The charges, as Mr Luk pointed out, are very serious. The only and most powerful mitigation for the defendant is the fact that he has pleaded guilty, not only saving the court’s time, it is also an indication of his remorse. Mr Luk pointed out that neither victim suffered any permanent physical injuries and there was no damage to the premises.

21.  Although the victims suffered no permanent physical injuries, cases of this nature where the victims were surprised in the early hours of the morning at home must affect the victims’ psychological state. It is without a doubt that victims of this kind of burglary do suffer some form of psychological damage which we know nothing about. If not damage, at least it would create a fear in their minds every time they went home. On top of that, both victims were injured in their homes.

22.  As I have indicated to Mr Luk, there are aggravating features in this case. This offence was committed in the early hours of the morning. It is clear from the facts that the knife that the defendant used on Miss Wong was one that did not belong to either victim, so the only reasonable inference to draw is that the defendant brought it with him. There was also a hammer which was found on the premises subsequently which did not belong to either victim. Admittedly the chopper belonged to Mr Wong. Nevertheless, this is a very serious crime.

23.  As far as the sentences are concerned, for burglary of domestic premises it is recommended that a starting point should be one of 3 years for a person with clear record and with no aggravating features. In this case, I have pointed out already that there are aggravating features and therefore I have to consider that a higher starting point should be appropriate.

24.  Also, I have not mentioned that another aggravating feature is that the victim was tied up and tape had been placed over her mouth, so there was violence on her.

25.  As far as the burglary is concerned, I consider a starting point of 3½ years to be appropriate. Because of the defendant’s plea he is entitled to one-third discount so the sentence is reduced to one of 28 months.

26.  On the 2nd charge of assault occasioning actual bodily harm, I consider a starting point of 2 years’ imprisonment to be appropriate reduced to 16 months because of his plea.

27.  In relation to the wounding, Section 17 charge, it was a malicious assault on an occupant of the premises which he burgled. I consider it serious and therefore I consider that a proper starting point would be one of 6 years’ imprisonment reduced to 4 years because of his plea.

28.  As Mr Luk correctly pointed out, I have to consider the totality principle and also the overall criminality of these offences.

29.  Having considered all that, I propose to make all the sentences concurrent, so the defendant will go to prison for 4 years.