HKSAR v. SIT KIN WA (also known as SIT KIN WAH)

DCCC 567/2020

[2021] HKDC 298

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 567 OF 2020

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REASONS FOR SENTENCE

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1.  Defendant is convicted on his own plea and agreement to Summary of Facts to a charge of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212.

Facts

2.  At all material times, PW1 and defendant were both tenants living in Room A, 4/F, Tak On House, 9 Wong Chuk Street, Sham Shui Po (“the Flat”) and their respective rooms were next to each other in the Flat.

3.  At about 3 am on 1 March 2020, PW1 was in bed when he got woke up by the defendant’s noise.  PW1 therefore approached defendant and asked him to keep quiet.  However, defendant became emotional and asked PW1 to fight him in the corridor.  Since PW1 did not want to fight defendant, he asked defendant to enter the kitchen with him to further discuss the matter. 

4.  After arguing for about 7 minutes in the kitchen, defendant fetched a knife with a 23 cm long blade and 10 cm long handle from the cabinet of the kitchen at about 3:14 am on the same day.  Defendant then kept arguing with PW1 with the knife in his hand and he also put the knife against the neck of PW1 for a few times when they were arguing.

5.  At about 3:21 am on the same day, in the heat, defendant used the knife to stab PW1’s waist once, causing the latter to bleed profusely, and then PW1 rushed out of the kitchen to seek for help.  On the other hand, defendant fled from the scene. 

6.  The whole incident was captured by the CCTV installed in the kitchen by the landlord.

7.  PW1 was then sent to hospital for treatment and it was confirmed that he was suffering from a 4 cm wound at left loin with mild oozing.  Urgent contrast computer tomography of abdomen and pelvis was performed which showed superficial skin and subcutaneous irregularity at the back of overlying the T10 to T12 levels.

8.  The knife in question was then later found on top of a light goods vehicle below the window near defendant’s bed.  Defendant was later arrested on the same day.

Criminal Record

9.  Defendant has 14 previous records involving convictions of 22 charges, of which 20 related to violence or threats of violence against person, including murder and 3 wounding convictions, 2 of which were wounding section 17 convictions.

Mitigation

10.  Defendant is aged 57.  He was born in mainland China and came to Hong Kong in year 1978. 

11.  Prior to his arrest, he was unemployed and living on Comprehensive Social Security Allowance. 

12.  He is educated up to Form 3 level and is married with a daughter aged 21.  His wife and his daughter rarely see the defendant and they live in mainland China.

13.  It was said the defendant has ill health as he has received operation in removing his duodenum and gall bladder and he has a drinking problem.

14.  Defendant handed to court a mitigation letter written by himself.  He said that despite his numerous record, he committed the present offence under self-intoxication. 

15.  Defence counsel submitted that at the material time, defendant went back to his small cubicle after supper and after he had consumed a considerable amount of alcohol.  It is submitted that despite there were occasional disputes arisen from trivial matters, defendant maintained a good relationship with other tenants. 

16.  Defendant took no issue about the happenings of the entire incident in the kitchen as captured by the CCTV.  It was said, however, that the defendant had tried to leave during the argument with PW1 but was only pulled back by PW1, and that PW1 was swearing against the defendant which had further agitated the defendant, and that the defendant was heavily drunk at the material time and what he really wanted to do was to get showered and go to bed.  It was most unfortunate that the defendant has completely lost his control and attacked PW1 afterwards.

17.  It is also submitted that defendant was shocked when he saw PW1 was injured.  And when PW1 rushed out for help, defendant bumped into PW2 to whom he asked to take good care of PW1.  It was also said that after commission of the offence, defendant was still not sober and therefore he left the scene and took rest somewhere else until he turned himself in on the same day.

18.  Defence counsel submitted that the assault constituted a single stabbing action; PW1 luckily suffered no permanent disability and the injury suffered by him was not the worst kind in similar cases.  Defendant’s action was not premeditated in any way.  At the material time, he was only wearing his undergarment and was about to get shower and he only picked up the knife as the argument happened inside the kitchen.  Defendant’s action solely arose from a daily life dispute and not triad-related nor revenge attack.  It was also said that no monetary reward was involved in the attack.

19.  Defence understands the customary sentencing range would fall between 3 to 12 years’ imprisonment.  And the court is referred to the case of HKSAR v Chan Chun Tat [2013] HKCA 169 and the case of HKSAR v Chu Sze Wing [2012] HKCA 247.  Defendant would also like the court to consider, while passing sentence, that despite the defendant’s previous record, in relation to this incident he only committed the offence out of impulse and he was under the influence of alcohol, and this court should also consider his guilty plea.

Discussion

20.  This court has carefully considered mitigation done on behalf of the defendant as well as the mitigation letter written by the defendant himself before sentencing.  In the present case, defendant and victim were occupants of different cubicles in the same flat.  They had grudge on minor matter before. 

21.  The weapon deployed by the defendant is a lethal one, a knife with blade of 23 cm.  From what we viewed from the tape, it is a deadly weapon. 

22.  It is fortunate for both the defendant and the victim that the defendant stabbed the victim once and the injury suffered by the victim was not the most serious of its kind as the victim managed to be discharged from hospital the next day.

23.  Before sentencing, this court has the benefit of watching the tape covering the moment from the victim and the defendant entered the kitchen until they exited. 

24.  One could see from the tape, which lasted for about 13 minutes, that during most of the time, defendant was bullying and threatening the victim. From the conversation between the victim and the defendant, one could tell that it was actually the victim who complained that the defendant was asking ID document from the roommate of the victim, which caused noise annoying the victim as he was sleeping.  Victim appeared to be polite and respectful to the defendant during the time when they had conversation.  It also appeared that the victim felt intimidated by the defendant as he called him “華哥”. 

25.  But from the conversation between the parties, the defendant had been threatening the victim most of the time.  For example, he said that he could kill all the people in the Flat that night, or that the victim’s friend would fear the defendant so much that he would listen to defendant’s order like a dog. 

26.  During the conversation, defendant also asked the victim to fight him barehanded, one against one.  And when the victim refused, the defendant took the knife from the top of the kitchen cabinet and stabbed him.  And when the victim cried for help with his hand covered with blood, the defendant still used his left hand to grab the shoulder of the victim, pushing him back against the wall and the defendant still brandishing his knife in the air as if he was trying to stab him further.  Time slot is 03:21:24 hours.

27.  The first time defendant took the knife was 03:14:17 hours.  He then placed the knife against the neck of the victim at 03:14:21 hours; and brandishing the knife in the air, at 03:15:20 hours.  And later, the victim put the knife back to the top of the kitchen cabinet.  The second time defendant took the knife was 03:20:36 hours.  Again, he put it against the victim’s neck at 03:21:12 hours.  He then stabbed the defendant at 03:21:18 hours, after which, again, as said earlier, he still grabbed the victim, holding the knife as if he would stab him again at 03:21:24 hours.

28.  From what one could see and hear from the tape, the conversation that the defendant had with the victim was totally coherent, no sluggish language or movement.  As the victim said to the defendant at the time, defendant was not drunk at all. 

29.  After the stab of the defendant at 03:21:18 hours, defendant only had his hand off the victim and allowed him to leave after 03:21:30 hours.  There was a lapse of 12 seconds after the first stab. 

30.  Further, when the parties exited from the room, one could still hear the defendant asking the victim if he wanted another stab.  This happened after the victim cried for help and was frightened.

31.  The circumstances under which the defendant committed the offence was appalling.  He was clearly bullying the victim at the time.  This court did not see any provocative acts on the part of the victim in the whole episode in the kitchen.

32.  Defence counsel pointed out that at one time, the victim did not allow the defendant to leave as he wanted him to sort out the matter first.  This court could not see how that could be something provocative.  As one could see from the tape, the manner that the victim pulled the defendant was not something impolite or violent.  It was like tucking the back of the shirt of the defendant.  Further, from the demeanour of the defendant in that 13 minutes’ tape, no doubt he was not drunk at all.

33.  As the court said in open court, the court would not accept the saying that the defendant was self-intoxicated at the time or that he was provoked at the time by the victim.  Despite the foregoing indication by the court and the court indicating this court is willing to conduct a Newton hearing on the issue, defence did not ask for a Newton hearing.

34.  Although there is no evidence indicating that the defendant intended to stab the victim before they entered the kitchen, from the tape, one could see that during the long conversation between the parties, the defendant did not appear to be very carried away when he got the knife for the second time.  He first held the knife against the neck of the victim 36 seconds after he got the knife, and he stabbed the victim 6 seconds later.  It is not a case when the defendant was blown off the top and stabbed the victim on the spur of the moment.  Clearly, he had some time to reflect upon himself after he got the knife before he stabbed the victim.

35.  It is said that the defendant did ask PW2 to look after the victim at a later stage.  It seemed that the defendant regretted only then.

36.  Defendant’s record is appalling.  He is clearly a person of violent temperament who easily resorts to violence.  His first conviction dated back when he was aged 17.  He was convicted of murder when he was 21 and he was released in the year 1987.  For 12 years afterwards, he managed to stay out of trouble, and he went back to solving problems with violence since then.  He had similar wounding convictions in the year 2014, and his last conviction was in the year 2019 when he was convicted of common assault and criminal damage. Clearly, the sentence passed on him in the past did not deter him from resorting to violence and no doubt he is a persistent offender.

37.  From the conversation between the defendant and the victim, one could not see any reason for the defendant having a grudge against the victim.

38.  Having regard to the circumstances of the case, the appropriate sentencing starting point is 3½ years’ imprisonment, of which the same is enhanced by reason that he is a persistent offender, thus aggravating the culpability for another 6 months to 4 years’ imprisonment.

39.  This court has considered mitigation done on his behalf and finds that the most valid mitigating factor is that of his guilty plea, for which he is entitled to one-third sentencing discount.  Defendant is therefore sentenced to 32 months’ imprisonment.

40.  Defendant is warned that unless he abstains from resorting to violence, he could expect himself spending the most part of the rest of his life in prison.