HKSAR v. ZHOU FENG

DCCC 950/2024

[2025] HKDC 1185

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 950 OF 2024

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REASONS FOR SENTENCE

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1.  Mr Zhou pleaded guilty before me to one charge of Wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212. Particulars are that he, on 5 November 2023, at Room E, 9^th Floor, Shun King Building, Nos 17-33 Ka Lok Street, Kwun Tong, Kowloon, in Hong Kong, unlawfully and maliciously wounded Cao Wei with intent to do him grievous bodily harm.

Facts admitted by Mr Zhou

2.  At all material times, Mr Zhou was sharing the subject flat, ie Room E of 9^th Floor, with Mr Cao Wei (PW1).

3.  On 5 November 2023, at about 8:30 pm, inside the flat, PW1 was chatting with his friend Ms Dong.  PW1 went over to turn on the air conditioner.  Mr Zhou would not have it and turned it off.  PW1 turned it on again which was met with Mr Zhou turning it off again.

4.  What’s more, Mr Zhou went to the kitchen to fetch a chopper and with it chopped the back of PW1’s head once.  PW1 bled profusely as a result.

5.  Ms Dong left the flat to call for help.  Mr Zhou left after her.

6.  PW1 was later admitted to the A & E Department of Queen Elizabeth Hospital.  Medical examination revealed the following injuries:-

(a) An over 20 cm laceration from vertex to left side of face;

(b) Profuse bleeding with arterial spurter;

(c) Fracture on the left skull with left epidural hematoma and subarachnoid hemorrhage;

(d) Left periorbital swelling with bruising;

(e) A 5 cm laceration at upper chest exposing subcutaneous fat; and

(f) Mild superficial abrasion over left side of back.

7.  Emergency operations were conducted on PW1.  He was discharged on 10 November 2023.

8.  At about 8:49 pm on the day of incident, a police constable noticed Mr Zhou to be wearing bloodstained clothing so he intercepted Mr Zhou for enquiries.  Mr Zhou stated he chopped his neighbour’s head at his residence. Mr Zhou elaborated by saying that it started with a quarrel between them which led to his neighbor trying to attack him with a chopper; he (Mr Zhou) took the chopper from his neighbor and he chopped his neighbor with it.

9.  Mr Zhou was arrested.  Under caution, he said that his neighbor wanted to chop him, and that was why he took the chopper and chopped his neighbor.

10.  At a subsequent cautioned VRI, Mr Zhou stated the following:

(a) He was acting in self-defence by chopping PW1;

(b) PW1 wanted to chop him with a chopper; he blocked PW1’s attack with his hand; the chopper fell onto the floor; he then chopped PW1 with the chopper; and

(c) He did not sustain any injuries.

11.  Mr Zhou now admits he unlawfully and maliciously wounded PW1 with intent to do him grievous bodily harm.

Criminal record

12.  Mr Zhou has a previous clear record in Hong Kong.

Antecedents

13.  Mr Zhou is aged 38 (36 at the time of the offence), educated to High school level in the Mainland, unemployed.  Mr Zhou lived in Henan Province. His family members include his parents, an elder brother and a son.  Mr Zhou came to Hong Kong as a traveler.  Mr Zhou was a Form 8 recognizance holder at the time of the offence.

Mitigation

14.  Mr Henry Ng of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Zhou.  The following is a summary of the mitigation submissions.

15.  Mr Zhou was born in Henan, Mainland China.  He is married.  His wife (38) is a housewife.  They have a son (13) studying in F1.

16.  Mr Zhou’s father (72) previously worked as a farmer but now is retired. The father suffers from gastric ulcers and depends on long-term medication.  Mr Zhou’s mother (70) is a housewife.  Mr Zhou has an elder brother (43) working as a factory worker.  Prior to the offence, Mr Zhou was living with his parents in the Mainland.

17.  Previously, Mr Zhou has worked as an automobile factory worker earning RMB7,000 to 8,000 Yuan a month for more than 2 years.  He was the sole bread winner of his family.  At the time of the offence, he was in Hong Kong on the strength of a travel document.

18.  Mr Zhou has a clear criminal record in Hong Kong.

19.  Mr Zhou pleaded guilty as soon as possible, showing his remorse.

20.  The victim PW1 was a good friend of Mr Zhou’s brother.  So Mr Zhou stayed in PW1’s residence.  On the day, Mr Zhou had a dispute with PW1 over the switching on of the air-conditioner.  In the heat of the moment, Mr Zhou lost his mind and committed the offence out of momentary impulse.

21.  Mr Zhou is now very remorseful and has deep reflection.  He is very sorry and regretful for the injuries inflicted on PW1.

22.  The offence consisted of a single incident and was not premeditated.  Mr Ng’s instruction was that Mr Zhou only struck PW1 once with the chopper.

23.  Mr Zhou understood that striking PW1 on the head with the chopper (a lethal weapon) could have unimaginable consequences.  He accepts and is prepared to receive a relatively higher level of criminal liability.

24.  Wounding with intent is a very serious offence, the maximum penalty being life imprisonment.  The Court of Appeal has not laid down any sentencing guidelines; so the sentence will depend on the circumstances of the case.

25.  The usual sentence after trial for this offence is 3 to 12 years’ imprisonment: HKSAR v Chan Chun Tat [2013] 6 HKC 225.  There the Court of Appeal also laid down some useful sentencing principles:

“48. Thus 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 realised in the injuries sought to be inflicted has been said to be of ‘secondary significance’.[HKSAR v Nguyen Van-Phuong [2006] HKCU 432; (CACC 341/2005, Stuart-Moore VP and Burrell J, 9 March 2006, unreported).] That must be so for, as the Court of Final Appeal pointed out in the Lau Cheong case [Lau Cheong & Anor v HKSAR [2002] 3 HKC 146, (2002) 5 HKCFAR 415], 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. That is why, even though the consequences to the victim will always be an important factor, 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.

49. Consequently, many of the factors to which a court will have regard in determining the gravity of a s 17 offence and the culpability of the offender 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. Thus, without attempting to exhaustively identi[f]y all the relevant factors, the usual ones will be 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, 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.

50. In arriving at an appropriate sentence the court will have regard not just to the need to punish the offender for his conduct, but also to the sentencing principles of deterrence, both general and individual, and, in appropriate cases, the need to denounce the resort to violence. Of course deterrence and denunciation are always important when there is resort to violence but there may be particular situations that call for greater deterrence, such as in triad gang or contract attacks, or more denunciatory sentences, such as in domestic violence cases.”

26.  The Court of Appeal in HKSAR v Ma Tik Lun Dicky [2015] 1 HKLRD 380 affirmed the sentencing principles set out in Chan Chun Tat.  The Court of Appeal set out a number of important factors for sentencing:

“40. In HKSAR v Chan Chun Tat [2013] 6 HKC 225, the Court of Appeal reiterated that “wounding with intent” is a serious offence which warrants a deterrent sentence, and that the major sentencing considerations are: [At 236F-H ie para 49.]

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

(2) the motivation underlying the assault;

(3) the mental or emotional state of the assailant;

(4) whether the assailant was acting under the influence of alcohol or drugs;

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

(6) the type of weapons employed;

(7) the level of force used;

(8) the injuries caused to the victim;

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

The Court of Appeal also pointed out that in respect of certain acts of violence, such as those involving triad gang attacks, the court must issue strong denunciation and impose sentences with a greater deterrent effect. [See 236I-237B ie para 50.]

41. Furthermore, the 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. See [13] of the Reasons for Judgment in HKSAR v Chui Kwok Ming (unrep., CACC 380/2013, [2014] CHKEC 513) (27 March 2014).”

27.  In the case of HKSAR v Wong Luk Sau [2013] 2 HKLRD 201, the applicant was charged with one count of wounding with intent, he was convicted and sentenced to 3 years’ imprisonment after trial.  The applicant applied for leave to appeal against sentence.  The facts were that the applicant (72) and the victim (78) had a dispute over a game of chess.  On the day in question, the applicant demanded compensation from the victim for an earlier incident. The two parties had an argument.  The applicant took out a knife.  The victim ran away; but the applicant caught up and stabbed the victim in the left armpit, causing a 1.5 cm stab wound.  The applicant continued to attack him with the knife.  As the victim tried to fend off the attack with his left hand, his left thumb and left index finger were injured.  The applicant ran away and the police were called.

28.  The Court of Appeal considered that there were aggravating features in the case:

“19. We agree with the respondent’s submission that there were aggravating features in the present case. The applicant had a quarrel with the victim over a chess game. The attack on the victim was not made when the applicant was in a rage in the heat of the quarrel; instead, one to three days later (the quarrel could have taken place on 20 June, 21 June or 22 June) the applicant, hiding two sharp knives on his person, went to the victim to get even with him. The victim tried to flee and avoid the applicant, but the applicant chased him relentlessly and stabbed him with a sharp knife. The attack was aimed at the left side of the victim’s chest and caused bleeding in his left axillary region. It is fortunate that the victim did not suffer more serious injuries and that neither his heart nor thoracic cavity was injured. However, the attack was one which could have inflicted serious injuries on the victim.

20. When the victim, injured by the stabbing, tried to defend himself, the applicant continued to attack him and injured his left hand as well. The applicant went on and chased the victim until the victim took refuge in the office of a District Councillor, and even then the applicant remained outside the office and shouted abuses.

21. At the material time, the applicant was not suffering a momentary loss of reason, but instead was committing a premeditated offence.

……

24. It is true that the injuries suffered by the victim in the present case were not serious. However, the applicant went to the victim, bringing along two sharp knives, and stabbed him in his left flank. Serious injuries could have been inflicted on the victim. In our view, it is not enough just to consider the injuries. The court should consider all the circumstances. As the Court of Appeal pointed out in Hung Kar Chun [Secretary for Justice v Hung Kar Chun [2011] 1 HKLRD 1083], the courts would not tolerate attacking another person with a lethal weapon such as a knife on minor provocation or while having a dispute, and for this type of cases the courts would impose more severe and deterrent sentences.”

29.  Having considered the circumstances of the case and the background of the applicant (old age, previous heart surgery and only one record of illegal gambling), the Court of Appeal was of the view that the appropriate starting point is imprisonment for 2 years and 3 months.  Therefore, the appeal against sentence was allowed.

30.  Comparing that case with the present case, Mr Ng submitted that the present case did not have aggravating features as such.  Mr Zhou committed the offence without premeditation due to a momentary lapse of reason during an argument.  Mr Zhou did not chase PW1 with the chopper and continued to attack him after the latter had sustained injuries.  Mr Ng’s instruction was that Mr Zhou only struck PW1 once and then stopped.

31.  However, Mr Ng acknowledged that Mr Zhou did strike PW1 on the head; the injuries were also much more severe; and that Mr Zhou was not old nor had he undergone any surgery.

32.  In HKSAR v Chu Sze Wing, CACC 289/2011, the appellant was convicted after trial of wounding with intent and was sentenced to 5 years’ imprisonment.

33.  The facts were that an apartment was divided into 12 wooden cubicles, each with its own door.  The appellant occupied one of these cubicles, his immediate neighbor being the victim.  There was bad blood between the appellant and the victim.  They had exchanged words on at least two earlier occasions concerning domestic matters: creating a disturbance at unsocial hours and the like.  On the morning in question, the victim created what the appellant considered to be an unnecessary disturbance.  Enraged, the appellant (62) seized a chopping knife, stepped out of his cubicle and banged on the door of the victim’s cubicle.  When the victim opened his door, the appellant used the chopping knife to strike at the victim’s face and head, causing three wounds: a 3 cm wound to his forehead, a 5 cm wound to his right cheek, and a 4 cm wound to the left corner of his mouth.  The wounds sustained by the victim were not serious and he was released from hospital the same day.

34.  Having considered the attack was not premeditated and that fortunately the injuries sustained were not serious, the Court of Appeal was of the view that an appropriate sentence should have been one of 4 years’ imprisonment. The appeal against sentence was allowed.

35.  Comparing that case with the present case, Mr Ng submitted that in both cases, a chopper knife was used to strike at the victim’s face and head. However, Mr Ng acknowledged that PW1’s injuries were more severe.

36.  Mr Ng finally referred to a non-binding sentencing case HKSAR v Ng How Yee [2025] HKDC 207.

37.  Mr Ng asked the court to take into account the following circumstances:

(a) Mr Zhou acted alone;

(b) The assault arose out of an argument and was a result of Mr Zhou’s outraged emotions;

(c) The offence was not committed in a public place;

(d) Mr Zhou only struck PW1 once with the chopper according to instructions;

(e) Mr Zhou did not continue to attack PW1 according to instructions;

(f) There is no evidence of permanent serious injury or significant long-term impact on PW1’s daily life;

(g) There was no premeditation or pre-planning;

(h) Mr Zhou committed the offence out of momentary impulse; and

(i) Mr Zhou is remorseful.

38.  Mr Zhou has had only one visit from his Mainland wife during remand because of financial constraints.  Mr Zhou truly feels sorry for what he has done and has learnt a lesson.  He promises the court that he will never re-offend.  He misses his son and hopes to return to the Mainland to look after his elderly parents and his family.

39.  Mr Ng asked the court to adopt a starting point of no more than 5 years’ imprisonment; and he reminded the court to give Mr Zhou a 1/3 sentencing discount for a plea of guilty in good time.

40.  Mr Ng submitted on behalf of Mr Zhou a mitigation letter written in Chinese by Mr Zhou himself.  The contents are generally that Mr Zhou sincerely apologizes to PW1; that Mr Zhou is regretful; that he promises to reform himself and make himself a new man.  Mr Zhou asked for a chance and an early re-integration into society so he may take care of his family and his elderly parents.

41.  When asked by the court, Mr Ng submitted after taking instructions that Mr Zhou overstayed his travel to Hong Kong and was therefore issued with a Form 8 recognizance pending repatriation back to the Mainland.

Sentence

42.  I have seen the two medical reports (P1) and the photo album of injuries (P2) submitted by the prosecution.

43.  The descriptions of the injuries in the Amended Summary of Facts para 6 as well as the photo album show that there were at least two strikes with the chopper.  I therefore reject the mitigation that there was only one strike with the chopper.  However, there was no evidence the second strike was levelled against PW1 after he had fallen down or after he was placed in a position in which he was unable to defend himself as a result of the first strike.

44.  Section 17 Wounding offence is a serious offence for which the maximum penalty is life imprisonment.  The usual sentence is between 3 and 12 years’ imprisonment after trial.  Both deterrence and denunciation are at the forefront of sentencing principles in this type of offence.

45.  In this case, provocation, if any, came only from Mr Zhou who was staying at the subject premises at the courtesy of PW1 who was a good friend of Mr Zhou’s elder brother.  An attack with or without weapon was inexcusable as a return of compliment and could only be attributable to Mr Zhou’s fiery character.  Of course, the subject attack was aggravated by the use of a weapon which was a chopper conveniently taken from the kitchen.  The attack was merciless and came from behind PW1’s head.  Because of the aimed bodily position, the extent of possible injuries was unimaginable and could even lead to death.  In the result, PW1 sustained serious injuries and underwent head and other operations and he had to stay in hospital for 5 days.

46.  Mr Ng said there were no aggravating features.  I disagree.  The attack was unprovoked.  Furthermore, on arrest and caution, Mr Zhou lied to the police and told them it was PW1 who first armed himself with the chopper and wanted to chop Mr Zhou with it; that he (Mr Zhou) was merely acting in self-defence after picking up the chopper.  This amply shows Mr Zhou’s initial lack of remorse (see Ma Tik Lun Dicky para 41).

47.  On the matter of Form 8 recognizance, I do not regard this as an aggravating factor here as Mr Zhou was not a torture claimant.

48.  Having considered all relevant circumstances including the fact that Mr Zhou acted out of momentary impulse, I adjudge a starting point of 4 years and 9 months’ imprisonment to be appropriate and this is the one which I adopt.

49.  Mr Zhou pleaded guilty in good time and thus is entitled to the full 1/3 sentencing discount.  For his clear record in Hong Kong, I exercise my discretion to give him a further one month off after the 1/3 discount.  There are no other mitigating factors of weight to warrant another sentence reduction.

(Mr Zhou, please stand)

50.  The sentence is 37 months’ imprisonment.