A A
DCCC213/2011
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 213 OF 2011
C C
----------------------
D D
HKSAR
E v. E
So Tsz-chung
F F
-----------------------
G G
Before: Deputy District Judge W K Kwok
Date: 4 July 2011 at 3.28 pm
H Present: Mr Tsoi Shun-cheong, Counsel on fiat, for HKSAR H
Mr Jeffrey Chan, of Messrs Au Thong & Tsang, assigned
by the Director of Legal Aid, for the Defendant
I I
Offence: Wounding with intent (有意圖而傷人)
J J
---------------------
K Reasons for Sentence K
L
--------------------- L
M M
1. The defendant was convicted upon his own plea of one
charge of wounding with intent, contrary to section 17(a) of the
N N
Offences against the Person Ordinance, Cap.212, Laws of Hong
O Kong. O
P Facts P
2. On 20 December 2010, after having some beers, the
Q defendant went to a lounge in Mongkok where he worked as a Q
waiter and intended to pick up a girl, Miss Leung, who also
R R
worked there as a hostess. The defendant regarded Miss Leung as
his girlfriend, however, Miss Leung ignored the defendant.
S S
T 3. Around 4.30 am, Miss Leung left the lounge with two men T
including the victim of this case. The defendant followed them.
U After they had a dispute for about a minute, the defendant left. U
CRT20/4.7.2011/TS 1 DCCC213/2011/Sentence
V V
A A
When Miss Leung and the men continued their way, the defendant
suddenly rushed at them from behind. He attacked the two men
B B
with a chopper. They had a struggle. The two men eventually
C subdued the defendant. They picked up the chopper and left in a C
taxi with Miss Leung. The defendant returned to the lounge but
D when he left the lounge he collapsed and was sent to Kwong Wah D
Hospital for treatment.
E E
4. Under caution, the defendant admitted he had pushed and
F F
punched the two male customers who left with Miss Leung. The
G customers retaliated and beat him. He then returned to the G
lounge, grabbed a chopper and waved it in order to scare the
H male customers and injured the face of one of them. The H
defendant said he committed the offence in the heat of the
I I
moment. He said he used the chopper because he was not able to
win the fight with the two men.
J J
K
5. The victim, a 28 year old man, was examined by doctor K
at around 4.47 am of the same day. He was fully conscious upon
L admission into hospital. He sustained a 3 centimetre laceration L
over his right forehead; he had abrasions over his right nose
M and lip. There was a fracture line in the right frontal bone M
involving the right frontal sinus. He received suturing on his
N N
right forehead, which was healed by 30 December 2010.
O O
Criminal Record
P 6. The defendant has a clear criminal record. P
Q Personal and family background Q
7. The defendant is 21 years old and single. He ceased
R R
schooling in 2004, when he had not yet completed Form 2
education. He was a waiter at the time of the offence and a
S S
delivery worker prior to his remand. He lives with his parents
T and a sister. His 63 year old father has retired and suffered T
from pneumoconiosis. His 62 year old mother is a cleaning worker
U U
CRT20/4.7.2011/TS 2 DCCC213/2011/Sentence
V V
A A
and his sister is a saleslady. He has another two elder sisters
and one elder brother, all of them are living apart.
B B
C Mitigation C
8. Mr Loftus, counsel appearing for the defendant when the
D defendant pleaded guilty, informed me that the defendant D
regarded Miss Leung as his girlfriend. On the day in question,
E E
the defendant waited at the lounge because he intended to escort
her home. He has been suspecting Miss Leung of seeing other men.
F F
While he was waiting he consumed cans of beer and Miss Leung
G played finger guessing games with two male customers. Later, G
Miss Leung left the lounge with the two customers without
H speaking to the defendant. The defendant chased after them. Out H
of jealousy and suspicion and acting under the influence of
I I
alcohol, the defendant punched one of the two men, but the two
men restrained him. The defendant felt that he would not be able
J J
to win a fight against the two men, so he returned to the lounge
K
and grabbed a chopper. He only intended to scare the two men, K
but eventually he chopped one of the two men.
L L
9. Mr Loftus submitted that:
M 1. Defendant had no premeditation for committing the M
offence.
N N
2. He was just fueled by alcohol.
3. He had a truly clear criminal record as he had not
O O
even been cautioned by the police.
P 4. He was cooperative with the police. P
5. He pleaded guilty.
Q 6. It is unlikely for the defendant to re-offend. Q
He submitted that a short sharp sentence would be appropriate.
R R
10. Today, Mr Chan, solicitor for the defendant, stressed
S S
the defendant was polite and sincere when he was interviewed by
T the CSD assessment officer. He submitted that the court might T
consider calling for a Drug Addiction Treatment Centre report in
U light of the defendant’s drug addiction. Even if a prison term U
CRT20/4.7.2011/TS 3 DCCC213/2011/Sentence
V V
A A
had to be imposed, he urged this court to take into account of
the defendant’s young age, the lack of serious harm to the
B B
victim and the provocation suffered by the defendant because his
C girlfriend was taken out by two men including the victim. C
D Pre-sentencing report D
11. As revealed by the defendant himself, he started to
E E
abuse dangerous drugs since June 2009. He took ketamine, “Ice”,
and cannabis once a month and spent $700 each occasion. His last
F F
dosage of dangerous drugs was on 15 June 2011.
G G
12. The medical officer is of the view that he is a drug-
H dependant. For this reason the Commissioner of Correctional H
Services considers him unsuitable for detention in a Detention
I I
Centre.
J J
Reason for sentence
K
13. Wounding with intent is a very serious offence. The K
Court of Appeal has made it clear that the courts in Hong Kong
L would not tolerate attacking another person with a lethal L
weapon, such as a chopper or knife, on minor provocation while
M having a dispute and the courts would in dealing with these kind M
of cases impose more severe punishment as a deterrence, Attorney
N N
General v Low Wing Wah [1996] 1 HKC 345, Secretary for Justice v
Hung Ka Chun, [2011] 1 HKLRD 1083 .
O O
P 14. The Court of Appeal had also stated that while no P
sentencing guideline could be laid down because each case had
Q its own background and particular extent of injury, sentences Q
for wounding with intent should be within the range of 3 to 12
R R
years. HKSAR v Yuen Wai Kui, CACC280/2004 and Secretary for
Justice v Hung Ka Chun oft cited.
S S
T 15. In the present case, I have no doubt whatsoever the T
defendant was acting out of jealousy when he saw Miss Leung left
U U
CRT20/4.7.2011/TS 4 DCCC213/2011/Sentence
V V
A A
him without saying a word with two male customers and acted out
of frustration when he felt that he had lost his lover.
B B
C 16. However, I reject right away the defendant was subject C
to any provocation by the victim and his friend. They were just
D customers patronising the lounge and Miss Leung was receiving D
them. Whatever purpose they have when they went out with Miss
E E
Leung, it was clearly Miss Leung was a willing and consenting
party and it made no difference whether she was doing so in the
F F
course of her employment or due to her friendship with the
G victim or his friend. The defendant was well-aware of the job G
nature of Miss Leung and he should not have any justifiable
H ground for feeling aggrieved with the victim and his friend. H
I I
17. It was said the defendant and Miss Leung had an
intimate relationship. Even if this was correct, the defendant
J J
was still at most a boyfriend of Miss Leung and he was not
K
entitled to control her movement or interfere with her decision K
of going out with other men or leaving the lounge without
L informing him. L
M 18. In my view, his jealousy and frustrations were all M
self-induced. They could only explain why he committed this
N N
offence but do not amount to mitigation.
O O
19. On the other hand, there were aggravating features in
P this case. P
1. The facts submitted by the defendant show that he
Q did not commit the offence out of a spur-of-the- Q
moment; he did not obtain the chopper at the scene
R R
off-handedily while he was arguing or struggling
with the victim and his friend. According to his
S S
own admission, what happened was that after he had
T pushed and punched the victim and his friend, they T
retaliated and beat him, the defendant then
U returned to the lounge, took out a chopper and U
CRT20/4.7.2011/TS 5 DCCC213/2011/Sentence
V V
A A
rushed toward the victim and his friend. There was
clearly an element of retaliation in his action.
B B
2. The chopper that the defendant equipped himself was
C indeed a very dangerous and lethal weapon. I C
examined the chopper. Its blade is 18 centimetres
D long and 7.8 centimetres wide. D
3. During the course of the attack, the defendant must
E E
have struck the chopper at the victim’s forehead
with considerable force. Not only did the victim
F F
sustain a laceration of 3 cm long over his right
G forehead, he also sustained a fracture line in the G
right frontal bone involving the frontal sinus. He
H was indeed extremely lucky that the victim did not H
sustain more severe injuries, but managed to have a
I I
full recovery within a short time of the attack.
J J
20. In light of the facts of this case, I have no doubt
K
that a custodial sentence is called for. Mr Loftus urged me to K
consider a short sharp sentence. Mr Chan asked me to consider
L detaining the defendant in a Drug Addiction Treatment Centre L
because of his drug addiction. I have no doubt the Drug
M Addiction Treatment Centre is not an appropriate sentencing M
option.
N N
21. The offence committed by the defendant was not drug-
O O
related at all and he had not been acting under the influence of
P drugs. Since the defendant is now 21 years and 10 months old, P
there are only two other possible forms of custodial sentences;
Q (1) detention in Detention Centre and (2) imprisonment. Q
R R
22. Since the Commissioner of Correctional Services had
considered the defendant unsuitable for detention in Detention
S S
Centre due to his drug-dependency, it is not open to this court
T to make a detention order against him: section 4(4) of the T
Detention Centre Ordinance, Cap.239, Laws of Hong Kong. For this
U reason, the only appropriate sentencing option is imprisonment. U
CRT20/4.7.2011/TS 6 DCCC213/2011/Sentence
V V
A A
23. Having considered the facts of this case, I adopt
B B
3 years’ imprisonment as a starting point.
C C
24. I note the defendant committed the offence under the
D influence of alcohol. However, influence of alcohol in the D
commission of an offence is not in general a reason for reducing
E E
a sentence especially for a serious offence: R v Liu Ping Kin
[1993] 2 HKC 192.
F F
G 25. The defendant has pleaded guilty to the charge and he G
is therefore entitled to the usual one-third discount off the
H sentence. I also note that he has a true clear record in the H
sense that he has not even been cautioned by a police
I I
superintendent before. However, after he has been given the one-
third discount of the sentence by reason of his guilty plea, the
J J
authorities indicate that no further reduction of the sentence
K
should be given on account of his clear record: Secretary for K
Justice v Ko Wai Kit [2001] 3 HKLRD 751, Secretary for Justice v
L Lee Cho Keung & others [2004] 5 HKC 179, Secretary for Justice v L
Chau Wan Fun [2006] 3 HKLRD 577.
M M
26. I note the defendant was only 21 years and 4 months old
N N
at the time of the offence. He was of course young but he did
not fall within the extreme youth category to whom the court may
O O
exercise a larger degree of leniency.
P P
27. Mr Chan also referred to the defendant’s depression.
Q However, the defendant had that depression in 2003 and he had Q
received treatment for a year. The present offence occurred in
R R
December 2010. I do not see the correlation between his
depression and the commission of the present offence. Hence, no
S S
reduction of sentence will be given in this regard.
T T
28. Now, for the above reasons, in my judgement, other than
U the defendant’s guilty plea, there is no valid mitigating U
CRT20/4.7.2011/TS 7 DCCC213/2011/Sentence
V V
A A
factor. It is also not open to this court to consider suspending
operation of the prison term because wounding with intent is an
B B
excepted offence. In any event, there is no mitigating factor
C upon which I can validly double its mitigating effect to order a C
suspension of the prison sentence.
D D
29. For these reason, the defendant is sentenced to
E E
2 years’ imprisonment.
F F
G G
W K Kwok
Deputy District Judge
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT20/4.7.2011/TS 8 DCCC213/2011/Sentence
V V
A A
DCCC213/2011
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 213 OF 2011
C C
----------------------
D D
HKSAR
E v. E
So Tsz-chung
F F
-----------------------
G G
Before: Deputy District Judge W K Kwok
Date: 4 July 2011 at 3.28 pm
H Present: Mr Tsoi Shun-cheong, Counsel on fiat, for HKSAR H
Mr Jeffrey Chan, of Messrs Au Thong & Tsang, assigned
by the Director of Legal Aid, for the Defendant
I I
Offence: Wounding with intent (有意圖而傷人)
J J
---------------------
K Reasons for Sentence K
L
--------------------- L
M M
1. The defendant was convicted upon his own plea of one
charge of wounding with intent, contrary to section 17(a) of the
N N
Offences against the Person Ordinance, Cap.212, Laws of Hong
O Kong. O
P Facts P
2. On 20 December 2010, after having some beers, the
Q defendant went to a lounge in Mongkok where he worked as a Q
waiter and intended to pick up a girl, Miss Leung, who also
R R
worked there as a hostess. The defendant regarded Miss Leung as
his girlfriend, however, Miss Leung ignored the defendant.
S S
T 3. Around 4.30 am, Miss Leung left the lounge with two men T
including the victim of this case. The defendant followed them.
U After they had a dispute for about a minute, the defendant left. U
CRT20/4.7.2011/TS 1 DCCC213/2011/Sentence
V V
A A
When Miss Leung and the men continued their way, the defendant
suddenly rushed at them from behind. He attacked the two men
B B
with a chopper. They had a struggle. The two men eventually
C subdued the defendant. They picked up the chopper and left in a C
taxi with Miss Leung. The defendant returned to the lounge but
D when he left the lounge he collapsed and was sent to Kwong Wah D
Hospital for treatment.
E E
4. Under caution, the defendant admitted he had pushed and
F F
punched the two male customers who left with Miss Leung. The
G customers retaliated and beat him. He then returned to the G
lounge, grabbed a chopper and waved it in order to scare the
H male customers and injured the face of one of them. The H
defendant said he committed the offence in the heat of the
I I
moment. He said he used the chopper because he was not able to
win the fight with the two men.
J J
K
5. The victim, a 28 year old man, was examined by doctor K
at around 4.47 am of the same day. He was fully conscious upon
L admission into hospital. He sustained a 3 centimetre laceration L
over his right forehead; he had abrasions over his right nose
M and lip. There was a fracture line in the right frontal bone M
involving the right frontal sinus. He received suturing on his
N N
right forehead, which was healed by 30 December 2010.
O O
Criminal Record
P 6. The defendant has a clear criminal record. P
Q Personal and family background Q
7. The defendant is 21 years old and single. He ceased
R R
schooling in 2004, when he had not yet completed Form 2
education. He was a waiter at the time of the offence and a
S S
delivery worker prior to his remand. He lives with his parents
T and a sister. His 63 year old father has retired and suffered T
from pneumoconiosis. His 62 year old mother is a cleaning worker
U U
CRT20/4.7.2011/TS 2 DCCC213/2011/Sentence
V V
A A
and his sister is a saleslady. He has another two elder sisters
and one elder brother, all of them are living apart.
B B
C Mitigation C
8. Mr Loftus, counsel appearing for the defendant when the
D defendant pleaded guilty, informed me that the defendant D
regarded Miss Leung as his girlfriend. On the day in question,
E E
the defendant waited at the lounge because he intended to escort
her home. He has been suspecting Miss Leung of seeing other men.
F F
While he was waiting he consumed cans of beer and Miss Leung
G played finger guessing games with two male customers. Later, G
Miss Leung left the lounge with the two customers without
H speaking to the defendant. The defendant chased after them. Out H
of jealousy and suspicion and acting under the influence of
I I
alcohol, the defendant punched one of the two men, but the two
men restrained him. The defendant felt that he would not be able
J J
to win a fight against the two men, so he returned to the lounge
K
and grabbed a chopper. He only intended to scare the two men, K
but eventually he chopped one of the two men.
L L
9. Mr Loftus submitted that:
M 1. Defendant had no premeditation for committing the M
offence.
N N
2. He was just fueled by alcohol.
3. He had a truly clear criminal record as he had not
O O
even been cautioned by the police.
P 4. He was cooperative with the police. P
5. He pleaded guilty.
Q 6. It is unlikely for the defendant to re-offend. Q
He submitted that a short sharp sentence would be appropriate.
R R
10. Today, Mr Chan, solicitor for the defendant, stressed
S S
the defendant was polite and sincere when he was interviewed by
T the CSD assessment officer. He submitted that the court might T
consider calling for a Drug Addiction Treatment Centre report in
U light of the defendant’s drug addiction. Even if a prison term U
CRT20/4.7.2011/TS 3 DCCC213/2011/Sentence
V V
A A
had to be imposed, he urged this court to take into account of
the defendant’s young age, the lack of serious harm to the
B B
victim and the provocation suffered by the defendant because his
C girlfriend was taken out by two men including the victim. C
D Pre-sentencing report D
11. As revealed by the defendant himself, he started to
E E
abuse dangerous drugs since June 2009. He took ketamine, “Ice”,
and cannabis once a month and spent $700 each occasion. His last
F F
dosage of dangerous drugs was on 15 June 2011.
G G
12. The medical officer is of the view that he is a drug-
H dependant. For this reason the Commissioner of Correctional H
Services considers him unsuitable for detention in a Detention
I I
Centre.
J J
Reason for sentence
K
13. Wounding with intent is a very serious offence. The K
Court of Appeal has made it clear that the courts in Hong Kong
L would not tolerate attacking another person with a lethal L
weapon, such as a chopper or knife, on minor provocation while
M having a dispute and the courts would in dealing with these kind M
of cases impose more severe punishment as a deterrence, Attorney
N N
General v Low Wing Wah [1996] 1 HKC 345, Secretary for Justice v
Hung Ka Chun, [2011] 1 HKLRD 1083 .
O O
P 14. The Court of Appeal had also stated that while no P
sentencing guideline could be laid down because each case had
Q its own background and particular extent of injury, sentences Q
for wounding with intent should be within the range of 3 to 12
R R
years. HKSAR v Yuen Wai Kui, CACC280/2004 and Secretary for
Justice v Hung Ka Chun oft cited.
S S
T 15. In the present case, I have no doubt whatsoever the T
defendant was acting out of jealousy when he saw Miss Leung left
U U
CRT20/4.7.2011/TS 4 DCCC213/2011/Sentence
V V
A A
him without saying a word with two male customers and acted out
of frustration when he felt that he had lost his lover.
B B
C 16. However, I reject right away the defendant was subject C
to any provocation by the victim and his friend. They were just
D customers patronising the lounge and Miss Leung was receiving D
them. Whatever purpose they have when they went out with Miss
E E
Leung, it was clearly Miss Leung was a willing and consenting
party and it made no difference whether she was doing so in the
F F
course of her employment or due to her friendship with the
G victim or his friend. The defendant was well-aware of the job G
nature of Miss Leung and he should not have any justifiable
H ground for feeling aggrieved with the victim and his friend. H
I I
17. It was said the defendant and Miss Leung had an
intimate relationship. Even if this was correct, the defendant
J J
was still at most a boyfriend of Miss Leung and he was not
K
entitled to control her movement or interfere with her decision K
of going out with other men or leaving the lounge without
L informing him. L
M 18. In my view, his jealousy and frustrations were all M
self-induced. They could only explain why he committed this
N N
offence but do not amount to mitigation.
O O
19. On the other hand, there were aggravating features in
P this case. P
1. The facts submitted by the defendant show that he
Q did not commit the offence out of a spur-of-the- Q
moment; he did not obtain the chopper at the scene
R R
off-handedily while he was arguing or struggling
with the victim and his friend. According to his
S S
own admission, what happened was that after he had
T pushed and punched the victim and his friend, they T
retaliated and beat him, the defendant then
U returned to the lounge, took out a chopper and U
CRT20/4.7.2011/TS 5 DCCC213/2011/Sentence
V V
A A
rushed toward the victim and his friend. There was
clearly an element of retaliation in his action.
B B
2. The chopper that the defendant equipped himself was
C indeed a very dangerous and lethal weapon. I C
examined the chopper. Its blade is 18 centimetres
D long and 7.8 centimetres wide. D
3. During the course of the attack, the defendant must
E E
have struck the chopper at the victim’s forehead
with considerable force. Not only did the victim
F F
sustain a laceration of 3 cm long over his right
G forehead, he also sustained a fracture line in the G
right frontal bone involving the frontal sinus. He
H was indeed extremely lucky that the victim did not H
sustain more severe injuries, but managed to have a
I I
full recovery within a short time of the attack.
J J
20. In light of the facts of this case, I have no doubt
K
that a custodial sentence is called for. Mr Loftus urged me to K
consider a short sharp sentence. Mr Chan asked me to consider
L detaining the defendant in a Drug Addiction Treatment Centre L
because of his drug addiction. I have no doubt the Drug
M Addiction Treatment Centre is not an appropriate sentencing M
option.
N N
21. The offence committed by the defendant was not drug-
O O
related at all and he had not been acting under the influence of
P drugs. Since the defendant is now 21 years and 10 months old, P
there are only two other possible forms of custodial sentences;
Q (1) detention in Detention Centre and (2) imprisonment. Q
R R
22. Since the Commissioner of Correctional Services had
considered the defendant unsuitable for detention in Detention
S S
Centre due to his drug-dependency, it is not open to this court
T to make a detention order against him: section 4(4) of the T
Detention Centre Ordinance, Cap.239, Laws of Hong Kong. For this
U reason, the only appropriate sentencing option is imprisonment. U
CRT20/4.7.2011/TS 6 DCCC213/2011/Sentence
V V
A A
23. Having considered the facts of this case, I adopt
B B
3 years’ imprisonment as a starting point.
C C
24. I note the defendant committed the offence under the
D influence of alcohol. However, influence of alcohol in the D
commission of an offence is not in general a reason for reducing
E E
a sentence especially for a serious offence: R v Liu Ping Kin
[1993] 2 HKC 192.
F F
G 25. The defendant has pleaded guilty to the charge and he G
is therefore entitled to the usual one-third discount off the
H sentence. I also note that he has a true clear record in the H
sense that he has not even been cautioned by a police
I I
superintendent before. However, after he has been given the one-
third discount of the sentence by reason of his guilty plea, the
J J
authorities indicate that no further reduction of the sentence
K
should be given on account of his clear record: Secretary for K
Justice v Ko Wai Kit [2001] 3 HKLRD 751, Secretary for Justice v
L Lee Cho Keung & others [2004] 5 HKC 179, Secretary for Justice v L
Chau Wan Fun [2006] 3 HKLRD 577.
M M
26. I note the defendant was only 21 years and 4 months old
N N
at the time of the offence. He was of course young but he did
not fall within the extreme youth category to whom the court may
O O
exercise a larger degree of leniency.
P P
27. Mr Chan also referred to the defendant’s depression.
Q However, the defendant had that depression in 2003 and he had Q
received treatment for a year. The present offence occurred in
R R
December 2010. I do not see the correlation between his
depression and the commission of the present offence. Hence, no
S S
reduction of sentence will be given in this regard.
T T
28. Now, for the above reasons, in my judgement, other than
U the defendant’s guilty plea, there is no valid mitigating U
CRT20/4.7.2011/TS 7 DCCC213/2011/Sentence
V V
A A
factor. It is also not open to this court to consider suspending
operation of the prison term because wounding with intent is an
B B
excepted offence. In any event, there is no mitigating factor
C upon which I can validly double its mitigating effect to order a C
suspension of the prison sentence.
D D
29. For these reason, the defendant is sentenced to
E E
2 years’ imprisonment.
F F
G G
W K Kwok
Deputy District Judge
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT20/4.7.2011/TS 8 DCCC213/2011/Sentence
V V