HKSAR v. CHENG WING WAI

DCCC 667/2017

[2018] HKDC 294

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 667 OF 2017

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a total of four charges. They are, collectively, firstly, criminal intimidation; secondly, assault occasioning actual bodily harm; thirdly, attempted wounding with intent; and finally, possession of a poison. All these charges arose out of an incident that occurred on 5 June 2017.

2.  The defendant’s ex‑girlfriend was the 1st prosecution witness, and on the evening of 4 June, the defendant had attended a restaurant where she was working, and had apparently scolded her.

3.  In the early hours of the morning of 5 June 2017, the victim, PW1, received a call from the defendant.  He said, “You made me being remanded in prison.  I will cut your face.”  Those are the facts that support the 1st charge.

4.  The victim decided that she wanted to go home, and was accompanied by some people from work.  Apparently the defendant followed her when she left work, using a taxi.  The victim was in a private car.  At some point the vehicles stopped.  The defendant got out of his vehicle, opened the door of the vehicle in which the victim was travelling, grabbed her jaw with his right hand, and punched her face with his left hand; these being the facts that support the 2nd charge.

5.  The victim had then alighted from the car.  The defendant pushed her to the ground.  There was another person already out of the car.  At this time the defendant was holding what is described as an orange cutter in his right hand, made a sound of moving the blade of the cutter, and said at the same time he had to cut PW1’s face.  Those are the facts that support the 3rd charge, the attempt to wound with intent.

6.  The defendant left the scene, holding the orange cutter in his hand.

7.  The victim was eventually taken to Queen Elizabeth Hospital for treatment and found to have tenderness on her right neck and face, redness of her ankle, and bruising on her elbow.  These were fresh injuries.

8.  The defendant surrendered himself to the police.  On arrest, a small pack of tablets containing two Viagra tablets was found, and they constitute the 4th charge.

9.  Under caution, the defendant had said he wanted to talk to the victim about their relationship and he did not mean to intimidate her.  Those constitute the facts of the relevant charges.

10.  The defendant’s antecedents show him to be, at the time when they were taken, a 51-year-old male.  According to this, he had worked as a waiter and tailor, and was unemployed at the time of his arrest. His criminal record discloses a number of offences, two offences that are relevant, and these show that on 4 May 2017, the defendant was convicted of offences of criminal intimidation and common assault, eventually receiving a sentence of 8 weeks’ imprisonment for both of those.  These offences were on the same victim.

11.  Because of this fact, I obtained reports on the defendant primarily to see if there was any risk of repetition of offences of this nature.  I also obtained a background report, which showed further details of the defendant’s background.  The defendant is in fact a married man.  He has a 24‑year-old daughter and a 14-year-old son.  It was an extramarital relationship with the victim in this case.  Notwithstanding that, as I understand from the background report, the relationship between the defendant and his wife is still intact.  The defendant had met the lady who is his wife whilst they were in their 20s.  The wife attributed the instability in their marriage to result out of the failure of the defendant’s business, which eventually led to the family needing to live on CSSA and there being frequent arguments about money.  It was said the defendant had become obsessed in his adulterous relationship.

12.  The probation officer considered the defendant appeared to be remorseful when discussing the offences.  He pledged to take care of his family after release.  The wife has said that she will not leave the defendant, but they would appear to be committed to the fact the marriage will continue.

13.  The psychological report gives some details of, as I say, the psychological position of the defendant.  The defendant is articulate.  There is no indication to suggest he has any psychiatric disorder.  The psychologist observed that the victim in the defendant’s current offences is the same victim of the offences in March 2017, the victim being his ex-girlfriend.  The general clinical impression was that the defendant was irresponsible, a revengeful, self-centred and thrill‑seeking and impulsive person.  He was very jealous and possessive about the victim, and was very angry when he learnt that the victim had another admirer and he resorted to intimidation of violence.  The psychologist observes that the defendant committed the present offences two days after he was discharged from prison for the first set of offences against the victim, and that imprisonment had had no deterrent effect on the defendant.  The defendant minimised his offences and had displayed stalking behaviour.  The conclusion of the psychologist was that the defendant posed a serious danger of violence to the victim.  His remorse for the offences was shallow and he had no insight into his problems, and his risk of violent reoffending was assessed to be high.  It was clear the defendant would require counselling on mood management and impulse control.

14.  As far as the mitigation is concerned, the defendant has pleaded guilty.  He has support from his family.  He is interested in making his marriage work, and I am told that his period in prison already has led to a realisation as to the nature of his behaviour, and that the defendant is genuinely remorseful.

15.  I turn to the question of sentence in respect of these offences.  As far as the 1st and 2nd offences, there is no general tariff for these offences, criminal intimidation and assault occasioning actual bodily harm, but in serious cases, of course, they can be visited by a sentence of imprisonment.  As far as the 3rd offence is concerned, that is an attempt to wound with intent.  The substantive offence can carry a sentence of life imprisonment.  It clearly is a very serious offence, here involving the attempt to wound with a sharpened implement here, a cutter.  Naturally, offences of this nature can be committed in a wide range of circumstances, so there is no articulated tariff, but sentences for the completed offence can range between 3 to 12 years’ imprisonment.  As far as the 4th offence is concerned, again there is no general tariff.

16.  As far as determining the starting point for sentence for each of these offences is concerned, there does appear to me to be one aggravating feature in respect of the first three offences, and that is it is a repeat offence against the same victim.  That must be considered to be an aggravating factor.  In respect of the 3rd offence, the attempt to wound was by use of a sharp instrument, namely a cutter, and where that form of weapon is used, the starting point of sentence can range higher than the normal 3 years.

17.  Taken overall, the defendant’s behaviour is appalling.  But aside from his fixation with his victim, there is no reason to think that he is a generally violent man.  These are his first violent offences occurring in 2017, when he was no longer a young man, and the defendant has exhibited compulsive behaviour in relation to the victim, and if he can put aside his obsession with her, it would appear that he would be, in fact, of little risk to the public.

18.  It appears to me these offences must be visited with sentences of imprisonment.

19.  The sentences I shall impose will be as follows:

on the 1st charge I will take a starting point for sentence of 9 months’ imprisonment and reduce that to 6 months’ imprisonment for his plea of guilty.

On the 2nd charge, that again is a repeat offence. I take a starting point of 12 months’ imprisonment and reduce that to 8 months’ imprisonment for the defendant’s plea of guilty.

On the 3rd offence, because it is the attempt to commit the offence, I will take an initial starting point of 36 months’ imprisonment, which I will increase to 39 months’ imprisonment having regard to the aggravating factor of it being a series of repeated crimes on the same victim. So that would make a starting point of 39 months’ imprisonment, and taking into account the defendant’s plea of guilty, will reduce the sentence on Charge 3 to 26 months’ imprisonment.

On the 4th offence, this is a comparatively minor offence. I will take a starting point of 3 days’ imprisonment and reduce that to 2 days’ imprisonment.

20.  Having regard to overall totality, all sentences will be served concurrently; a total of 26 months’ imprisonment.