HKSAR v. MAC NHU-KY

DCCC 290/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 290 OF 2013

----------------------

---------------------

Reasons for Sentence

---------------------

1.  The defendant pleaded guilty to a charge of wounding with intent.

2.  At the relevant time the defendant and the victim were both inmates of Stanley Prison.

3.  On the day of the offence, in the afternoon of 1 November 2012, the defendant and the victim had a verbal dispute during the course of a soccer match inside the prison.  The defendant maintained that the victim swore at him and threatened him.

4.  That evening, whilst he and the victim were queuing up outside Gate No 4 of the main dining hall in the prison, the defendant suddenly fisted the victim’s head from behind.  He then used a homemade weapon which had been made from four pieces of broken chopsticks tied up together to attack the victim.

5.  The victim sustained a number of injuries during the attack.  Fortunately, none of them were serious.  The injuries included a 3.5 centimetre linear abrasion over the left temporal area; two superficial lacerations around 3 centimetres by 2 centimetres over the left anteauricular area; two dots of superficial laceration over his left cheek; two centimetre by four centimetre reddish bruise with swelling over the right forehead; a 2 centimetre superficial abrasion over the right cheek; two dots of abrasion over his right lateral malleolus; and 5 centimetre linear abrasion over the middle left leg.

6.  The victim was sent for medical treatment in the Prison Hospital and discharged the same day.

7.  The weapon used was seized at the scene and has been produced in court today.

8.  The defendant maintains in his cautioned statement that the victim swore at him during the course of a football match and he felt offended and he therefore attacked the victim the same evening using a homemade weapon. 

9.  He further admitted that he had prepared the weapon beforehand by breaking up four pieces of chopsticks and tying them together.

10.  The defendant has appeared before the court on a number of occasions.  In 2003 for possession of arms and ammunition, for possession of offensive weapon and for remaining unlawfully in Hong Kong, he was sent to prison for a total of 3 years and 3 months.  In 2005 for remaining in Hong Kong and for breach of a deportation order, he was sentenced to 18 months’ imprisonment.  In 2007 for similar offences he was imprisoned, and in August 2007 while serving that sentence he was convicted of wounding or inflicting grievous bodily harm on a prison inmate for which he was sent to prison for 12 months; the sentence to run consecutive to his existing sentence.  In 2009 he was sentenced to 30 months’ imprisonment for remaining in Hong Kong in breach of deportation. 

11.  At the time of the commission of this offence he was serving a sentence imposed upon him in June 2012, again for remaining in Hong Kong in breach of deportation.  He is serving a sentence of 25 months’ imprisonment, and I understand that he is due to be released on 16 August 2013.

12.  The defendant is aged 32 and was born in Vietnam in 1981.  He was educated to Form 10 standard in Vietnam and worked as a fisherman until 2002.  He suffers from AIDS and liver disease.  He has a mother and a wife and daughter in Vietnam.  I am told that his daughter is now 7 months old and his wife was pregnant before his last sentence of imprisonment was imposed.

13.  I am told that he is now remorseful for his current offence and has submitted a letter giving his version of the events. He repeats that the incident occurred as a result of something that happened during the course of a football match.  Followed an incident during the match, he alleges that the victim swore at him and threatened him.

14.  He alleges that later that day whilst he was sitting at a table reserved for Vietnamese inmates, the victim and three other Hong Kong inmates approached him pointing their fingers to his face and saying that he had to leave immediately otherwise he would be beaten to death.  He said at that moment he was very frightened as to what they would do, and because he was the only Vietnamese inmate and there were more than 100 Hong Kong inmates.  He said he was thinking what to do and reflecting on the fact that his daughter had been born just a few months previously.

15.  He said while sitting there he was thinking what he should do and four Hong Kong inmates approached again and pointed their fingers in his face threatening him.  He said that he felt oppressed, he was pushed by them.  He said that like mad, then he reacted without knowing what he had done, he grabbed four chopsticks on a nearby table, broke them and used them to hurt him.  He said that afterwards he realized his reaction was wrong and he is remorseful, and he asks for leniency.

16.  I do not accept his version of events.  I have the weapon used before me in court.  There appear to be two chopsticks or four chopsticks broken in half.  The ends of each of the four chopsticks have been sharpened and they have been wrapped in tape.  This was not something he grabbed on a spur of the moment.

17.  The defendant is a violent man.  He has been convicted of violence before.  Fortunately, the injuries sustained by the victim were not particularly serious.  As offences of this kind go, they are at the lower end of the scale.  However, this is his second attack on a prison inmate.  Prison inmates deserve to be protected from people like the defendant.  It seems to me that the Prison Authorities have been generous to the defendant in allowing an AIDS sufferer to participate in football matches.

18.  Looking at the circumstances, I therefore take a starting of 3 years and 6 months for this offence and reduce it to 2 years and 4 months to reflect the guilty plea.  In my view, it would be wrong in principle in the circumstances of this offence to make any of that sentence concurrent, and I order that the sentence run consecutive to his existing sentence.