區域法院（刑事）Deputy District Judge So Wai Tak7/7/2024[2024] HKDC 1125
DCCC1203/2023
A A
B B
DCCC 1203/2023
C [2024] HKDC 1125 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1203 OF 2023
F F
________________
G HKSAR G
v
H H
LU A TUNG
I ________________ I
J Before: Deputy District Judge So Wai Tak J
Date: 8 July 2024
K K
Present: Mr Frankie Ko, Public Prosecutor, for HKSAR
L Mr Christopher Leung, instructed by Choy Yung & Co., L
Solicitors, assigned by the Director of Legal Aid, for the
M M
defendant
N Offences: [1] Wounding with intent N
[2] Taking employment while being a person in respect of whom
O O
a removal order is in force
P P
Q Q
R __________________________ R
S REASONS FOR SENTENCE S
__________________________
T T
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Overview
C C
1. The defendants pleads guilty to an offence of “Wounding with
D D
intent”, contrary to section 17(a) of the Offences against the Person
E Ordinance, Cap. 212 (“Charge 1”), and an offence of “Taking employment E
while being a person in respect of whom a removal order is in force”,
F F
contrary to section 38AA(1)(b) and 38AA(2) of the Immigration
G Ordinance, Cap. 115 (“Charge 2”). G
H H
2. In gist, the defendant, feeling aggrieved by the dismissal,
I ambushed the victim, his superior, on her way home from work and I
attacked her with a kitchen knife.
J J
K Admitted facts K
L L
Charge 1
M M
3. PW1 was the shop manager of Bonnie Vegetables & Fruit
N N
Wholesale Limited in Ngau Chi Wan Village (“the Store”) since October
O 2022. O
P P
4. Since April 2023, the defendant worked as the night shift
Q general worker at the Store. Since 10 May 2023, PW1 found that the work Q
performance of the defendant was unsatisfactory. She related her view to
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PW2, the regional manager of the company and also advised the defendant
S about his performance over the phone. S
T T
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5. On 8 June 2023, in the absence of improvement, PW1
C suggested to PW2 to dismiss the defendant. The defendant, having been C
informed of the decision by PW2, tried to call PW1 but she decided not to
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answer the call. At about 7:30pm on the same day, PW1 left the Store
E together with a colleague. Later, when PW1 was walking alone in the E
subway leading to Exit C of Choi Hung MTR station, the defendant
F F
appeared with a kitchen knife in his right hand and something in his left
G hand. G
H H
6. At that juncture, the defendant, without saying a word, used
I the kitchen knife to slash PW1’s right hand, right thigh, right side of her I
back and left upper arm. The defendant then fled. The attack lasted for
J J
about 20 seconds.
K K
7. A passer-by PW3 witnessed the attack after he heard the
L L
scream from PW1. He saw the defendant slashed PW1 after she had fallen
M to the ground and there were a total of approximately 10 slashes. M
N N
8. In the vicinity of the scene, the police seized an unopened
O chopper, its blade was 18cm in length and handle was 12 cm in length, O
whereas the kitchen knife could not be located.
P P
Q 9. As a result of the attack, PW1 suffered multiple lacerations on Q
her limbs and back and an open fracture of the head of the middle phalanx
R R
of the right index finger. She was hospitalized at the United Christian
S Hospital between 8 June 2023 and 30 June 2023. An update of PW1’s S
condition reveals that although all her wounds were healed, she has to see
T T
physiotherapist for follow-up treatment. Also, she suffers weakness at her
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right fingers and right anterior thigh; she feels pain at her upper left arm at
C night from time to time resulting in insomnia; she has nightmares recalling C
1
the incident .
D D
E 10. Upon police investigation, the defendant was arrested on 11 E
June 2023 and he was positively identified by PW3 in an ID parade on 13
F F
June 2023.
G G
11. The surveillance CCTV footages in Sham Shui Po district and
H H
Ngau Chi Wan district captured that between 5:13pm and 6:40pm on 8
I June 2023, the defendant purchased a kitchen knife and a chopper from a I
grocery shop and the length of the kitchen knife is similar to that of the
J J
chopper; before the attack, he was wandering near the scene wearing a
K black sleeve on his right arm and a pair of white labour gloves. K
L L
Charge 2
M M
12. On 25 June 2019, the Immigration Department issued a
N N
removal order against the defendant.
O O
13. Without complying with the order, the defendant continued to
P P
stay in Hong Kong and took up employment as a night shift general worker
Q at the Store between a day unknown in 2023 and 8 June 2023. Q
R R
S S
T 1
T
See Annex 1 for details (Extract of paragraphs 19 to 24 of the Summary of Facts); a photo album was
submission on 30 May 2024 showing the injuries of PW1.
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Mitigation
C C
14. The defendant, aged 28, is a Form 8 holder from Vietnam
D D
since 2019. He is now residing with his girlfriend in Hong Kong and they
E have baby girl aged 9 months. He is relying on ISSA for living. By way E
of personal background, I am told that he was raised in an orphanage in
F F
Vietnam and he received education up to secondary level. Before he came
G to Hong Kong, he worked as a hawker selling lottery tickets. It is also G
stressed that due to the lack of parental guidance and love, he has poor
H H
emotional control and self-restraint which attributes to the commission of
I Charge 1. I
J J
15. Mr Leung, on behalf of the defendant, submits that since April
K 2023, the defendant was employed by PW1 as a night shift worker on a K
daily wage of HKD800 and his main duty was to unpack and divide
L L
wholesale fruit and vegetables. Due to long working hours, the defendant
M considered to quit the job. PW1 then made a promise of pay rise to M
HKD1,000 per day in order to retain his service. However, PW1 never
N N
honoured her promise. On the day in question, PW1 unreasonably
O criticized his work performance, resulting in an argument between them. O
Eventually, he was dismissed by PW1. Against this background, he felt
P P
“extremely cheated, exploited, enraged and provoked” . Under these 2
Q circumstances, he went out to buy the knife in question to commit the Q
offence.
R R
S S
T T
2
Paragraph 8 of the Defendant’s Written Mitigation dated 24 May 2024.
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16. The defendant has a clear record, but he has an outstanding
C case of unlawful remaining. It is suggested by the defence that the C
defendant is willing to testify against PW1 in the prosecution for an offence
D D
of employing a person who is not lawfully employable. As a result, the
E case was adjourned on 30 May 2024 for the defendant to give a non- E
prejudicial statement to the prosecution. However, the prosecution finds
F F
the statement of no practical use and will not institute prosecution against
G PW1. By and large, he is now very remorseful and promises never to G
reoffend.
H H
I 17. For Charge 1, Mr Leung prays in aid of the sentences passed I
in seven cases3 and argues that the facts of the present case are less culpable
J J
than those emerged in these cases. Therefore, as it is averred, the
K appropriate sentence should be in the range between 3 years and 4 years. K
L L
18. As to totality, having accepted the sentencing guideline laid
M down by the Court of Appeal is one of 15 months’ imprisonment upon plea M
for Charge 2, it is submitted that “both offences are not distinct” and
N N
“occurred within a short time of each other (around 1 hour)” 4 and the
O sentences of Charge 1 and 2 should therefore run concurrently in full. O
P P
Q Q
R R
S S
T 3
See the Defendant’s List of Authorities. T
4
Paragraph 23 of the Defendant’s Written Mitigation dated 24 May 2024.
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Sentencing
C C
Charge 1
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E 19. In HKSAR v. Wong Luk-sau, CACC 2/2012, the Court of E
Appeal observed that:
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“16. There are no sentencing guidelines for the offence of wounding
G G
with intent. In Hung Kar Chun the Court of Appeal established a range
H H
of 3 to 12 years’ imprisonment for this offence (see Yuen Wai Kui).
I I
17. It is true that the range of 3 to 12 years is not a sentencing tariff,
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and the court is not obliged to impose 3 years’ imprisonment as the
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minimum term.”
L L
M
20. In HKSAR v. Ma Tik Lun Dicky, CACC 112/2013, the Court M
of Appeal encapsulated the sentencing principles for an offence of
N N
wounding with intent:
O O
“40. In HKSAR v Chan Chun Tat [2013] 6 HKC 225, the Court of
P Appeal reiterated that “wounding with intent” is a serious offence P
which warrants a deterrent sentence, and that the major sentencing
Q Q
considerations are :
R R
(1) the extent to which the assault was premeditated;
S S
(2) the motivation underlying the assault;
T (3) the mental or emotional state of the assailant; T
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(4) whether the assailant was acting under the influence of
C alcohol or drugs; C
(5) whether the assault was committed by the assailant alone or
D D
as part of a group;
E E
(6) the type of weapons employed;
F (7) the level of force used; F
G (8) the injuries caused to the victim; G
(9) the effect of the assault upon the victim (and those close to
H H
him or her).
I I
......
J J
41. Furthermore, the aggravating factors for this type of wounding
K case are: (1) the defendant was the principal offender; (2) the assault K
was committed in company; (3) the assault was unprovoked; (4) the
L L
assault took place in a public place; (5) the assault went on after the
M victim had fallen down; (6) the assault went on after the victim became M
unable to defend himself; (7) the victim suffered serious and lasting
N N
injuries; (8) at the police interview, the defendant misled the police as
O to the facts, indicating a lack of remorse. See paragraph 13 of the O
Reasons for Judgment in HKSAR v Chui Kwok Ming, CACC 380/2013
P P
(unreported), 27 March 2014.”
Q Q
R 21. In the present case, the defendant’s unlawful act entirely R
stemmed from the grievance and anger he nursed against PW1 for his
S S
dismissal. It is all too common that an employee will feel frustrated in
T facing employment termination. An aggrieved employee should never T
resort to violence as a means to vent his or her anger under any
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circumstances, albeit he or she may disagree with the decision or consider
C it unreasonable or unjustified. The attack carried out by the defendant was C
undoubtedly a planned revenge for his treatment at work. The sentence
D D
must hence carry deterrent effect in that the defendant should be firmly
E deterred from resorting to weapons and violence. In my view, there is a E
strong need for deterrence, generally and individually, in sentencing.
F F
22. In mitigation, it is submitted by Mr Leung that “the degree of
G G
pre-meditation was only around 1 hour in advance of the attack as a result
H of PW1’s oral dispute with D; D was furious as he felt cheated and H
provoked by PW1 at the material time” and “he felt provoked by PW1 at
I I
5
the time of the attack.” . If I understand the submission correctly, it is
J suggested that the act of the defendant was less culpable, as compared with J
other decided cases, in terms of planning and his mental status. With
K K
respect, I do not agree.
L L
23. Firstly, prior to the attack, the defendant left the Store and
M M
attended a grocery shop in Sham Shui Po district. Secondly, he bought a
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kitchen knife and a chopper, the blade of each of them was approximately
O
18 cm in length. Without a doubt, those are lethal weapons capable of O
causing serious and fatal injuries. Therefore, he must have the intent to
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inflict really serious bodily harm on PW1. Thirdly, he returned to the
Q vicinity of the Store and waited for PW1. In my view, it is not an Q
exaggeration to describe his act as a planned ambush on a defenseless
R R
victim in a public place.
S S
T T
5
Paragraph 13 of the Defendant’s Written Mitigation dated 24 May 2024.
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24. In Secretary for Justice v. Hung Kar Chun, CAAR 9/2010,
C Cheung JA gave a practical definition of premeditation: C
“11(2) This was not purely an unpremeditated case. It was not the
D D
case that the respondent offhandedly picked up an object at the scene
E to attack PW1 when he was engulfed in rage. His acts were planned E
and malicious: after the two had an argument over the phone, the
F F
respondent left the mall and took a 10 minutes’ walk to buy the weapon
G before returning to the mall. On the way, he even phoned his girl friend, G
making threatening remarks to PW1. This is different from the
H H
circumstances where a person attacked another person having lost
I control of his emotions as a result of a dispute.” I
J J
K
25. Insofar as his mental status is concerned, assuming that he had K
heated argument with PW1 as alleged by Mr Leung (which is contrary to
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the Summary of Facts to which to the defendant admits), he subsequently
M
left the Store and he must have time to cool himself off. However, he M
planned to take revenge on PW1 by way of a vicious attack, which was not
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carried out at the spur of the moment. I do not accept that he committed
O the offence due to sudden and momentary loss of self-control, let alone O
provocation.
P P
Q 26. In the course of mitigation, I have been referred to a number Q
of cases, one of which is a Court of Appeal judgment, one is from the Court
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of First Instance and 5 are District Court decisions6.
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T T
6
District Court cases are not binding on this Court.
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27. Time and again, the Court of Appeal has reiterated that for an
C offence of wounding with intent, the circumstances and factual matrix C
differ from case to case and the other decided cases are of limited assistance
D D
in sentencing. In Ma Tik Lun Dicky, supra, the Court of Appeal restated
E that: E
“39. … In our judgment, it cannot be a correct sentencing
F F
approach to compare sentences imposed in different cases: each case
G involves its own set of facts and little purpose will be served by G
comparing sentences imposed on the basis of different facts.”
H H
I I
28. On the contrary, under a close scrutiny, I am not able to agree
J
that the defendant’s criminality was less serious than the decided cases J
K
cited by the defence. The facts of the present case are clearly K
distinguishable from the cases cited.
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M
29. In Chung Wai Chung7, the attacks, as found by the learned M
judge, were not premeditated as the assailants picked up the weapons from
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the vicinity. The learned judge also found that the weapons were not lethal
O in nature. I note that it is not mentioned in the Defendant’s Written O
Mitigation that the learned judge indeed took a starting point of 5 years for
P P
an offence of “Causing grievous bodily harm with intent” which is under
Q the same offence-creating provision, ie section 17(a), as Charge 1. Q
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S S
T T
7
DCCC 478 & 838/2021 & 1007/2022
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30. In Dinh Khac Muoi, Lau Yuk Huen and Lee Chun Lok8, all
C these cases involved domestic violence in which the defendants picked up C
the weapons from the kitchens in the heat of argument.
D D
E 31. In Mohammad Munsur9 , the defendant attended the scene E
with a weapon was to talk out the monetary dispute with PW1 while PW2
F F
was also carrying a weapon at the material time.
G G
10
32. In Shakeal Awais , the weapon involved was a cutter which
H was intended to be used in stealing and the learned judge remarked that H
“the type of weapon employed is not usual form of weapon used in these
I I
kind of wounding with intent cases, there is no chopper or knife used.”11
J J
33. In Limbu Sangam12, the defendant attacked the victim with
K K
chopper in the washroom of a restaurant after hearing a racist slur, though
L he was not sure if it was uttered by the victim who was a patron. The L
learned judge passed the sentence on the basis that the attack was not
M M
premeditated and the chopper “is a tool easily found in the kitchen area.”13
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O
34. For the present sentencing purpose, I take into account the O
following factors:
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Q Q
8
DCCC 467/2017, CACC 37/2008 and HCCC 114/2021
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9
DCCC 213/2022
10
DCCC 312/2021
S S
11
Paragraph 15 of the Judgment.
12
T DCCC 750/2022 T
13
Paragraph 15 of the Judgment.
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(1) It was not an impulsive attack and it was premeditated. He
C purchased the weapons before the attack and wore a pair of white C
gloves. He waited for PW1 on her way home from work in the
D D
vicinity of the MTR station;
E (2) The attack was clearly an revenge for his dismissal; E
F (3) It took place in a public place. F
(4) The weapon used was a kitchen knife. The defendant also carried a
G G
chopper with him. They were lethal weapons;
H H
(5) The defendant continued to attack after PW1 had fallen to the ground.
I The entire attack lasted for about 20 seconds with about 10 slashes; I
and
J J
(6) PW1 sustained multiple lacerations on her limbs and back, and an
K K
open fracture on right index finger.
L L
M
35. In the present case, it was only fortuitous that the injuries M
suffered by PW1 were not fatal and the wounds were fully healed. I would
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not lose sight of the fact that PW1 now experiences weakness at her right
O fingers and her right thigh and the psychological trauma. In any event, the O
lack of permanent and serious injuries will not lessen the defendant’s
P P
culpability. In HKSAR v. Tung Pak Fai, CACC 231/2021, M Poon JA
Q observed that: Q
“21. Given the many imponderables as to why an assailant failed
R R
to achieve the injuries intended by him, the actual injuries caused is
S only one of the myriad of factors to be taken into account. The S
gravamen of the offence is in the intent to inflict really serious injuries,
T T
which is the same intent as that required for murder. The lack of serious
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injuries does not necessarily reduce the gravity of the offence or offset
C the other aggravating factors.” C
D D
36. Having considered all the circumstances and everything urged
E E
upon me on behalf of the defendant, I take a starting point of 4 years and 6
F months, or 54 months. F
G G
Form 8 holder
H H
37. The defendant is an asylum seeker from Vietnam since 2019.
I I
J 38. It is trite law that it is an aggravating feature where a J
defendant is a Form 8 holder if he commits a crime in Hong Kong. In
K K
HKSAR v. Singh Gursevak, CACC 139/2018, the Court of Appeal, after
L applying HKSAR v. Ali Saif, [2018] 6 HKC 19, succinctly summarized the L
relevant principle as follows:
M M
“38. The following principles can be derived from this passage of
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the judgment:
O (i) the purpose of the enhancement is for the courts to “mark in O
a meaningful way the significance of a defendant’s betrayal of the trust
P P
placed in him by the people of Hong Kong, and the impact of that
Q betrayal on the lives of its citizens and the reputation of the city”; Q
R (ii) the enhancement must be of such a length that it will deter R
Form 8 holders from becoming involved in serious crime; and
S S
(iii) in order for the enhancement to have a meaningful deterrent
T effect it generally should not be less than 6 months for serious offences. T
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39. Thus, the sentencing principles that underly the assessment of
C the amount of the enhancement are: C
(i) denunciation by the courts of criminal activity by Form 8
D D
holders; and
E E
(ii) deterrence of all Form 8 holders from committing crimes
F while they enjoy the freedom to live in Hong Kong as they await the F
resolution of their claims.”
G G
H H
39. At the hearing, I have invited submission from the defence on
I this aggravating feature. Mr Leung, in his further mitigation submissions, I
takes no issue with the magnitude of the enhancement.
J J
K 40. Having considered the nature of the offence, I enhance the K
sentence by 6 months to reflect this aggravating feature.
L L
M 41. In the result, the overall starting point for Charge 1 is 5 years, M
or 60 months. The sentence is then reduced to 40 months for his timely
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plea.
O O
P Charge 2 P
Q Q
42. In HKSAR v. Usman Butt and Another [2010] 5 HKLRD 452,
R R
the Court of Appeal has laid down the sentencing tariff for this offence.
S For a first offender, the appropriate sentence is one of 15 months upon a S
plea of guilty.
T T
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43. I see no reason to depart from the above tariff and I therefore
C sentence the defendant to 15 months for Charge 2. C
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Totality principle
E E
F 44. In my judgment, Charge 1 and 2 are separate and distinct. F
With respect, the assertion that “both offences occurred within a short time
G G
of each other (around 1 hour)” is wholly misconceived. Timewise, Charge
H 2 alleges that the defendant took up employment for the period between a H
date unknown in 2023 and 8 June 2023 whereas the wounding offence took
I I
place on 8 June 2023.
J J
K K
45. Applying the totality principle, I have to assess the overall
L
criminality so as to arrive at a just sentence14. L
M M
46. In this case, the defendant was subject to a removal order
N N
since 2019. Refusing to comply with the order, he took up employment in
O 2023 while he was unlawfully remaining in Hong Kong. Dissatisfying O
with his dismissal, he carried out a brutal and savage attack on PW1.
P P
Obviously, the defendant flagrantly disregarded the law.
Q Q
R 47. Apart from his timely plea, I see no other mitigating factor R
which warrants further reduction. Having considered the matter in the
S S
T
14
HKSAR v. Wang Quanwen CACC 263/2014: “in applying the totality principle the court is T
standing back from the final sentence and determining whether it is a just sentence.” (paragraph 53 of
the Judgment)
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round, I order 8 months of the sentence for Charge 2 be run consecutively
C to the sentence of Charge 1. In the result, the final sentence is one of 4 C
years, or 48 months, representing a notional overall starting point of 6 years,
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or 72 months’ imprisonment.
E E
Conclusion
F F
G G
48. By reasons of the aforesaid, the defendant is sentenced to 4
H years’ imprisonment. H
I I
J J
( So Wai-tak )
Deputy District Judge
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Annex 1
C C
PW1’s Injuries
D D
19. PW1 attended the Department of Accident & Emergency of
E the United Christian Hospital on 8 June 2023 and was discharged on 30 E
June 2023.
F F
G 20. As a result of D’s attack in the Incident, PW1 suffered the G
following injuries:
H H
a. Left Proximal Upper Arm: a 10 cm transverse laceration over
I I
left proximal upper arm, just distal to posterior aspect of
J deltoid muscle but proximal to spiral groove. The long head J
K
and lateral head of the triceps were completely cut, while the K
medial head of the triceps sustained a 20% cut.
L L
b. Right Anterior Thigh:
M
i. A 14 cm laceration located over the proximal M
anterolateral thigh and involved a 20% cut of the vastus
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lateralis muscle;
O ii. A 17 cm laceration (oblique in orientation) over the O
anterior distal thigh resulted in 20% cut of the vastus
P P
medialis muscle;
Q iii. A 9 cm laceration lateral to the second laceration Q
caused a 10% cut of the vastus lateralis muscle;
R R
c. Right Hand:
S i. A 3 cm oblique laceration over the right hand’s first S
web, extending to the thenar space, resulted in the
T T
complete cut of the abductor pollicis brevis and
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opponens pollicis muscles, while the digital nerve
C remained intact; C
ii. An open facture of the head of the middle phalanx of
D D
the right index finger was identified, accompanied by
E bone and tissue loss. The bone loss involved more than E
50% of the articular surface, specifically the radial
F F
condyle of the middle phalanx head. A tissue loss of
G approximately 1 x 1 cm in size was observed at the G
dorsal aspect of the mid-middle-phalanx level;
H H
d. Proximal Interphalangeal Joints: lacterations over proximal
I interphalangeal joints of middle, ring and little finger, with I
each laceration around 2 cm. The central slips and capsules
J J
of each finger suffered an 80% cut;
K e. Right upper back: A 5 cm oblique laceration over right upper K
back, deep to subcutaneous level; and
L L
f. Acute stress response was noted with suicidal ideation.
M M
21. PW 1 was followed up in the out-patient clinic on 11 July
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2023 and 14 August 2023. Physical examination showed that all her
O wounds were healed. The power of left elbow extension and right knee O
extension was full. There was stiffness over all proximal interphalangeal
P P
joints with 6 cm finger-tip-to-palm distance. The active ranges of flexion
Q of index finger, middle finger, ring finger and little finger proximal Q
interphalangeal joint were 70 degrees. 90 degrees, 90 degrees and 70
R R
degrees respectively. Elson test was negative over middle to little fingers.
S X-rays of right index finger showed healing of fusion site. S
T T
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22. PW1 was referred to the Physiotherapy Department of the
C United Christian Hospital for treatment. From 18 September 2023 and 19 C
February 2024, PW1 attended a total of 3 physiotherapy treatment sessions
D D
and reported 60% subjective improvement with physiotherapy on 26
E October 2023. E
F F
23. PW1 was also referred to the Department of Occupational
G Therapy of the United Christian Hospital for remedial class treatment. G
PW1 attend 1 session of treatment on 21 November 2023.
H H
I 24. Another statement was taken from PW1 on 21 May 2024 I
explaining her recent medical conditions. According to PW1, since the
J J
incident, she was required to attend medical appointments as a result of her
K injuries. She could not carry heavy goods with her right fingers. She K
would also feel pain at her upper left arm at night from time to time and
L L
could not fall into sleep because of the pain. She experienced weakness at
M her right anterior thigh and would from time to time experience muscle M
spasm. Further, at night, she would have nightmares recalling this incident.
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DCCC 1203/2023
C [2024] HKDC 1125 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1203 OF 2023
F F
________________
G HKSAR G
v
H H
LU A TUNG
I ________________ I
J Before: Deputy District Judge So Wai Tak J
Date: 8 July 2024
K K
Present: Mr Frankie Ko, Public Prosecutor, for HKSAR
L Mr Christopher Leung, instructed by Choy Yung & Co., L
Solicitors, assigned by the Director of Legal Aid, for the
M M
defendant
N Offences: [1] Wounding with intent N
[2] Taking employment while being a person in respect of whom
O O
a removal order is in force
P P
Q Q
R __________________________ R
S REASONS FOR SENTENCE S
__________________________
T T
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B B
Overview
C C
1. The defendants pleads guilty to an offence of “Wounding with
D D
intent”, contrary to section 17(a) of the Offences against the Person
E Ordinance, Cap. 212 (“Charge 1”), and an offence of “Taking employment E
while being a person in respect of whom a removal order is in force”,
F F
contrary to section 38AA(1)(b) and 38AA(2) of the Immigration
G Ordinance, Cap. 115 (“Charge 2”). G
H H
2. In gist, the defendant, feeling aggrieved by the dismissal,
I ambushed the victim, his superior, on her way home from work and I
attacked her with a kitchen knife.
J J
K Admitted facts K
L L
Charge 1
M M
3. PW1 was the shop manager of Bonnie Vegetables & Fruit
N N
Wholesale Limited in Ngau Chi Wan Village (“the Store”) since October
O 2022. O
P P
4. Since April 2023, the defendant worked as the night shift
Q general worker at the Store. Since 10 May 2023, PW1 found that the work Q
performance of the defendant was unsatisfactory. She related her view to
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PW2, the regional manager of the company and also advised the defendant
S about his performance over the phone. S
T T
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5. On 8 June 2023, in the absence of improvement, PW1
C suggested to PW2 to dismiss the defendant. The defendant, having been C
informed of the decision by PW2, tried to call PW1 but she decided not to
D D
answer the call. At about 7:30pm on the same day, PW1 left the Store
E together with a colleague. Later, when PW1 was walking alone in the E
subway leading to Exit C of Choi Hung MTR station, the defendant
F F
appeared with a kitchen knife in his right hand and something in his left
G hand. G
H H
6. At that juncture, the defendant, without saying a word, used
I the kitchen knife to slash PW1’s right hand, right thigh, right side of her I
back and left upper arm. The defendant then fled. The attack lasted for
J J
about 20 seconds.
K K
7. A passer-by PW3 witnessed the attack after he heard the
L L
scream from PW1. He saw the defendant slashed PW1 after she had fallen
M to the ground and there were a total of approximately 10 slashes. M
N N
8. In the vicinity of the scene, the police seized an unopened
O chopper, its blade was 18cm in length and handle was 12 cm in length, O
whereas the kitchen knife could not be located.
P P
Q 9. As a result of the attack, PW1 suffered multiple lacerations on Q
her limbs and back and an open fracture of the head of the middle phalanx
R R
of the right index finger. She was hospitalized at the United Christian
S Hospital between 8 June 2023 and 30 June 2023. An update of PW1’s S
condition reveals that although all her wounds were healed, she has to see
T T
physiotherapist for follow-up treatment. Also, she suffers weakness at her
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right fingers and right anterior thigh; she feels pain at her upper left arm at
C night from time to time resulting in insomnia; she has nightmares recalling C
1
the incident .
D D
E 10. Upon police investigation, the defendant was arrested on 11 E
June 2023 and he was positively identified by PW3 in an ID parade on 13
F F
June 2023.
G G
11. The surveillance CCTV footages in Sham Shui Po district and
H H
Ngau Chi Wan district captured that between 5:13pm and 6:40pm on 8
I June 2023, the defendant purchased a kitchen knife and a chopper from a I
grocery shop and the length of the kitchen knife is similar to that of the
J J
chopper; before the attack, he was wandering near the scene wearing a
K black sleeve on his right arm and a pair of white labour gloves. K
L L
Charge 2
M M
12. On 25 June 2019, the Immigration Department issued a
N N
removal order against the defendant.
O O
13. Without complying with the order, the defendant continued to
P P
stay in Hong Kong and took up employment as a night shift general worker
Q at the Store between a day unknown in 2023 and 8 June 2023. Q
R R
S S
T 1
T
See Annex 1 for details (Extract of paragraphs 19 to 24 of the Summary of Facts); a photo album was
submission on 30 May 2024 showing the injuries of PW1.
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Mitigation
C C
14. The defendant, aged 28, is a Form 8 holder from Vietnam
D D
since 2019. He is now residing with his girlfriend in Hong Kong and they
E have baby girl aged 9 months. He is relying on ISSA for living. By way E
of personal background, I am told that he was raised in an orphanage in
F F
Vietnam and he received education up to secondary level. Before he came
G to Hong Kong, he worked as a hawker selling lottery tickets. It is also G
stressed that due to the lack of parental guidance and love, he has poor
H H
emotional control and self-restraint which attributes to the commission of
I Charge 1. I
J J
15. Mr Leung, on behalf of the defendant, submits that since April
K 2023, the defendant was employed by PW1 as a night shift worker on a K
daily wage of HKD800 and his main duty was to unpack and divide
L L
wholesale fruit and vegetables. Due to long working hours, the defendant
M considered to quit the job. PW1 then made a promise of pay rise to M
HKD1,000 per day in order to retain his service. However, PW1 never
N N
honoured her promise. On the day in question, PW1 unreasonably
O criticized his work performance, resulting in an argument between them. O
Eventually, he was dismissed by PW1. Against this background, he felt
P P
“extremely cheated, exploited, enraged and provoked” . Under these 2
Q circumstances, he went out to buy the knife in question to commit the Q
offence.
R R
S S
T T
2
Paragraph 8 of the Defendant’s Written Mitigation dated 24 May 2024.
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16. The defendant has a clear record, but he has an outstanding
C case of unlawful remaining. It is suggested by the defence that the C
defendant is willing to testify against PW1 in the prosecution for an offence
D D
of employing a person who is not lawfully employable. As a result, the
E case was adjourned on 30 May 2024 for the defendant to give a non- E
prejudicial statement to the prosecution. However, the prosecution finds
F F
the statement of no practical use and will not institute prosecution against
G PW1. By and large, he is now very remorseful and promises never to G
reoffend.
H H
I 17. For Charge 1, Mr Leung prays in aid of the sentences passed I
in seven cases3 and argues that the facts of the present case are less culpable
J J
than those emerged in these cases. Therefore, as it is averred, the
K appropriate sentence should be in the range between 3 years and 4 years. K
L L
18. As to totality, having accepted the sentencing guideline laid
M down by the Court of Appeal is one of 15 months’ imprisonment upon plea M
for Charge 2, it is submitted that “both offences are not distinct” and
N N
“occurred within a short time of each other (around 1 hour)” 4 and the
O sentences of Charge 1 and 2 should therefore run concurrently in full. O
P P
Q Q
R R
S S
T 3
See the Defendant’s List of Authorities. T
4
Paragraph 23 of the Defendant’s Written Mitigation dated 24 May 2024.
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Sentencing
C C
Charge 1
D D
E 19. In HKSAR v. Wong Luk-sau, CACC 2/2012, the Court of E
Appeal observed that:
F F
“16. There are no sentencing guidelines for the offence of wounding
G G
with intent. In Hung Kar Chun the Court of Appeal established a range
H H
of 3 to 12 years’ imprisonment for this offence (see Yuen Wai Kui).
I I
17. It is true that the range of 3 to 12 years is not a sentencing tariff,
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and the court is not obliged to impose 3 years’ imprisonment as the
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minimum term.”
L L
M
20. In HKSAR v. Ma Tik Lun Dicky, CACC 112/2013, the Court M
of Appeal encapsulated the sentencing principles for an offence of
N N
wounding with intent:
O O
“40. In HKSAR v Chan Chun Tat [2013] 6 HKC 225, the Court of
P Appeal reiterated that “wounding with intent” is a serious offence P
which warrants a deterrent sentence, and that the major sentencing
Q Q
considerations are :
R R
(1) the extent to which the assault was premeditated;
S S
(2) the motivation underlying the assault;
T (3) the mental or emotional state of the assailant; T
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(4) whether the assailant was acting under the influence of
C alcohol or drugs; C
(5) whether the assault was committed by the assailant alone or
D D
as part of a group;
E E
(6) the type of weapons employed;
F (7) the level of force used; F
G (8) the injuries caused to the victim; G
(9) the effect of the assault upon the victim (and those close to
H H
him or her).
I I
......
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41. Furthermore, the aggravating factors for this type of wounding
K case are: (1) the defendant was the principal offender; (2) the assault K
was committed in company; (3) the assault was unprovoked; (4) the
L L
assault took place in a public place; (5) the assault went on after the
M victim had fallen down; (6) the assault went on after the victim became M
unable to defend himself; (7) the victim suffered serious and lasting
N N
injuries; (8) at the police interview, the defendant misled the police as
O to the facts, indicating a lack of remorse. See paragraph 13 of the O
Reasons for Judgment in HKSAR v Chui Kwok Ming, CACC 380/2013
P P
(unreported), 27 March 2014.”
Q Q
R 21. In the present case, the defendant’s unlawful act entirely R
stemmed from the grievance and anger he nursed against PW1 for his
S S
dismissal. It is all too common that an employee will feel frustrated in
T facing employment termination. An aggrieved employee should never T
resort to violence as a means to vent his or her anger under any
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circumstances, albeit he or she may disagree with the decision or consider
C it unreasonable or unjustified. The attack carried out by the defendant was C
undoubtedly a planned revenge for his treatment at work. The sentence
D D
must hence carry deterrent effect in that the defendant should be firmly
E deterred from resorting to weapons and violence. In my view, there is a E
strong need for deterrence, generally and individually, in sentencing.
F F
22. In mitigation, it is submitted by Mr Leung that “the degree of
G G
pre-meditation was only around 1 hour in advance of the attack as a result
H of PW1’s oral dispute with D; D was furious as he felt cheated and H
provoked by PW1 at the material time” and “he felt provoked by PW1 at
I I
5
the time of the attack.” . If I understand the submission correctly, it is
J suggested that the act of the defendant was less culpable, as compared with J
other decided cases, in terms of planning and his mental status. With
K K
respect, I do not agree.
L L
23. Firstly, prior to the attack, the defendant left the Store and
M M
attended a grocery shop in Sham Shui Po district. Secondly, he bought a
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kitchen knife and a chopper, the blade of each of them was approximately
O
18 cm in length. Without a doubt, those are lethal weapons capable of O
causing serious and fatal injuries. Therefore, he must have the intent to
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inflict really serious bodily harm on PW1. Thirdly, he returned to the
Q vicinity of the Store and waited for PW1. In my view, it is not an Q
exaggeration to describe his act as a planned ambush on a defenseless
R R
victim in a public place.
S S
T T
5
Paragraph 13 of the Defendant’s Written Mitigation dated 24 May 2024.
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24. In Secretary for Justice v. Hung Kar Chun, CAAR 9/2010,
C Cheung JA gave a practical definition of premeditation: C
“11(2) This was not purely an unpremeditated case. It was not the
D D
case that the respondent offhandedly picked up an object at the scene
E to attack PW1 when he was engulfed in rage. His acts were planned E
and malicious: after the two had an argument over the phone, the
F F
respondent left the mall and took a 10 minutes’ walk to buy the weapon
G before returning to the mall. On the way, he even phoned his girl friend, G
making threatening remarks to PW1. This is different from the
H H
circumstances where a person attacked another person having lost
I control of his emotions as a result of a dispute.” I
J J
K
25. Insofar as his mental status is concerned, assuming that he had K
heated argument with PW1 as alleged by Mr Leung (which is contrary to
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the Summary of Facts to which to the defendant admits), he subsequently
M
left the Store and he must have time to cool himself off. However, he M
planned to take revenge on PW1 by way of a vicious attack, which was not
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carried out at the spur of the moment. I do not accept that he committed
O the offence due to sudden and momentary loss of self-control, let alone O
provocation.
P P
Q 26. In the course of mitigation, I have been referred to a number Q
of cases, one of which is a Court of Appeal judgment, one is from the Court
R R
of First Instance and 5 are District Court decisions6.
S S
T T
6
District Court cases are not binding on this Court.
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27. Time and again, the Court of Appeal has reiterated that for an
C offence of wounding with intent, the circumstances and factual matrix C
differ from case to case and the other decided cases are of limited assistance
D D
in sentencing. In Ma Tik Lun Dicky, supra, the Court of Appeal restated
E that: E
“39. … In our judgment, it cannot be a correct sentencing
F F
approach to compare sentences imposed in different cases: each case
G involves its own set of facts and little purpose will be served by G
comparing sentences imposed on the basis of different facts.”
H H
I I
28. On the contrary, under a close scrutiny, I am not able to agree
J
that the defendant’s criminality was less serious than the decided cases J
K
cited by the defence. The facts of the present case are clearly K
distinguishable from the cases cited.
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M
29. In Chung Wai Chung7, the attacks, as found by the learned M
judge, were not premeditated as the assailants picked up the weapons from
N N
the vicinity. The learned judge also found that the weapons were not lethal
O in nature. I note that it is not mentioned in the Defendant’s Written O
Mitigation that the learned judge indeed took a starting point of 5 years for
P P
an offence of “Causing grievous bodily harm with intent” which is under
Q the same offence-creating provision, ie section 17(a), as Charge 1. Q
R R
S S
T T
7
DCCC 478 & 838/2021 & 1007/2022
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30. In Dinh Khac Muoi, Lau Yuk Huen and Lee Chun Lok8, all
C these cases involved domestic violence in which the defendants picked up C
the weapons from the kitchens in the heat of argument.
D D
E 31. In Mohammad Munsur9 , the defendant attended the scene E
with a weapon was to talk out the monetary dispute with PW1 while PW2
F F
was also carrying a weapon at the material time.
G G
10
32. In Shakeal Awais , the weapon involved was a cutter which
H was intended to be used in stealing and the learned judge remarked that H
“the type of weapon employed is not usual form of weapon used in these
I I
kind of wounding with intent cases, there is no chopper or knife used.”11
J J
33. In Limbu Sangam12, the defendant attacked the victim with
K K
chopper in the washroom of a restaurant after hearing a racist slur, though
L he was not sure if it was uttered by the victim who was a patron. The L
learned judge passed the sentence on the basis that the attack was not
M M
premeditated and the chopper “is a tool easily found in the kitchen area.”13
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O
34. For the present sentencing purpose, I take into account the O
following factors:
P P
Q Q
8
DCCC 467/2017, CACC 37/2008 and HCCC 114/2021
R R
9
DCCC 213/2022
10
DCCC 312/2021
S S
11
Paragraph 15 of the Judgment.
12
T DCCC 750/2022 T
13
Paragraph 15 of the Judgment.
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(1) It was not an impulsive attack and it was premeditated. He
C purchased the weapons before the attack and wore a pair of white C
gloves. He waited for PW1 on her way home from work in the
D D
vicinity of the MTR station;
E (2) The attack was clearly an revenge for his dismissal; E
F (3) It took place in a public place. F
(4) The weapon used was a kitchen knife. The defendant also carried a
G G
chopper with him. They were lethal weapons;
H H
(5) The defendant continued to attack after PW1 had fallen to the ground.
I The entire attack lasted for about 20 seconds with about 10 slashes; I
and
J J
(6) PW1 sustained multiple lacerations on her limbs and back, and an
K K
open fracture on right index finger.
L L
M
35. In the present case, it was only fortuitous that the injuries M
suffered by PW1 were not fatal and the wounds were fully healed. I would
N N
not lose sight of the fact that PW1 now experiences weakness at her right
O fingers and her right thigh and the psychological trauma. In any event, the O
lack of permanent and serious injuries will not lessen the defendant’s
P P
culpability. In HKSAR v. Tung Pak Fai, CACC 231/2021, M Poon JA
Q observed that: Q
“21. Given the many imponderables as to why an assailant failed
R R
to achieve the injuries intended by him, the actual injuries caused is
S only one of the myriad of factors to be taken into account. The S
gravamen of the offence is in the intent to inflict really serious injuries,
T T
which is the same intent as that required for murder. The lack of serious
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injuries does not necessarily reduce the gravity of the offence or offset
C the other aggravating factors.” C
D D
36. Having considered all the circumstances and everything urged
E E
upon me on behalf of the defendant, I take a starting point of 4 years and 6
F months, or 54 months. F
G G
Form 8 holder
H H
37. The defendant is an asylum seeker from Vietnam since 2019.
I I
J 38. It is trite law that it is an aggravating feature where a J
defendant is a Form 8 holder if he commits a crime in Hong Kong. In
K K
HKSAR v. Singh Gursevak, CACC 139/2018, the Court of Appeal, after
L applying HKSAR v. Ali Saif, [2018] 6 HKC 19, succinctly summarized the L
relevant principle as follows:
M M
“38. The following principles can be derived from this passage of
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the judgment:
O (i) the purpose of the enhancement is for the courts to “mark in O
a meaningful way the significance of a defendant’s betrayal of the trust
P P
placed in him by the people of Hong Kong, and the impact of that
Q betrayal on the lives of its citizens and the reputation of the city”; Q
R (ii) the enhancement must be of such a length that it will deter R
Form 8 holders from becoming involved in serious crime; and
S S
(iii) in order for the enhancement to have a meaningful deterrent
T effect it generally should not be less than 6 months for serious offences. T
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39. Thus, the sentencing principles that underly the assessment of
C the amount of the enhancement are: C
(i) denunciation by the courts of criminal activity by Form 8
D D
holders; and
E E
(ii) deterrence of all Form 8 holders from committing crimes
F while they enjoy the freedom to live in Hong Kong as they await the F
resolution of their claims.”
G G
H H
39. At the hearing, I have invited submission from the defence on
I this aggravating feature. Mr Leung, in his further mitigation submissions, I
takes no issue with the magnitude of the enhancement.
J J
K 40. Having considered the nature of the offence, I enhance the K
sentence by 6 months to reflect this aggravating feature.
L L
M 41. In the result, the overall starting point for Charge 1 is 5 years, M
or 60 months. The sentence is then reduced to 40 months for his timely
N N
plea.
O O
P Charge 2 P
Q Q
42. In HKSAR v. Usman Butt and Another [2010] 5 HKLRD 452,
R R
the Court of Appeal has laid down the sentencing tariff for this offence.
S For a first offender, the appropriate sentence is one of 15 months upon a S
plea of guilty.
T T
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43. I see no reason to depart from the above tariff and I therefore
C sentence the defendant to 15 months for Charge 2. C
D D
Totality principle
E E
F 44. In my judgment, Charge 1 and 2 are separate and distinct. F
With respect, the assertion that “both offences occurred within a short time
G G
of each other (around 1 hour)” is wholly misconceived. Timewise, Charge
H 2 alleges that the defendant took up employment for the period between a H
date unknown in 2023 and 8 June 2023 whereas the wounding offence took
I I
place on 8 June 2023.
J J
K K
45. Applying the totality principle, I have to assess the overall
L
criminality so as to arrive at a just sentence14. L
M M
46. In this case, the defendant was subject to a removal order
N N
since 2019. Refusing to comply with the order, he took up employment in
O 2023 while he was unlawfully remaining in Hong Kong. Dissatisfying O
with his dismissal, he carried out a brutal and savage attack on PW1.
P P
Obviously, the defendant flagrantly disregarded the law.
Q Q
R 47. Apart from his timely plea, I see no other mitigating factor R
which warrants further reduction. Having considered the matter in the
S S
T
14
HKSAR v. Wang Quanwen CACC 263/2014: “in applying the totality principle the court is T
standing back from the final sentence and determining whether it is a just sentence.” (paragraph 53 of
the Judgment)
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B B
round, I order 8 months of the sentence for Charge 2 be run consecutively
C to the sentence of Charge 1. In the result, the final sentence is one of 4 C
years, or 48 months, representing a notional overall starting point of 6 years,
D D
or 72 months’ imprisonment.
E E
Conclusion
F F
G G
48. By reasons of the aforesaid, the defendant is sentenced to 4
H years’ imprisonment. H
I I
J J
( So Wai-tak )
Deputy District Judge
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Annex 1
C C
PW1’s Injuries
D D
19. PW1 attended the Department of Accident & Emergency of
E the United Christian Hospital on 8 June 2023 and was discharged on 30 E
June 2023.
F F
G 20. As a result of D’s attack in the Incident, PW1 suffered the G
following injuries:
H H
a. Left Proximal Upper Arm: a 10 cm transverse laceration over
I I
left proximal upper arm, just distal to posterior aspect of
J deltoid muscle but proximal to spiral groove. The long head J
K
and lateral head of the triceps were completely cut, while the K
medial head of the triceps sustained a 20% cut.
L L
b. Right Anterior Thigh:
M
i. A 14 cm laceration located over the proximal M
anterolateral thigh and involved a 20% cut of the vastus
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lateralis muscle;
O ii. A 17 cm laceration (oblique in orientation) over the O
anterior distal thigh resulted in 20% cut of the vastus
P P
medialis muscle;
Q iii. A 9 cm laceration lateral to the second laceration Q
caused a 10% cut of the vastus lateralis muscle;
R R
c. Right Hand:
S i. A 3 cm oblique laceration over the right hand’s first S
web, extending to the thenar space, resulted in the
T T
complete cut of the abductor pollicis brevis and
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B B
opponens pollicis muscles, while the digital nerve
C remained intact; C
ii. An open facture of the head of the middle phalanx of
D D
the right index finger was identified, accompanied by
E bone and tissue loss. The bone loss involved more than E
50% of the articular surface, specifically the radial
F F
condyle of the middle phalanx head. A tissue loss of
G approximately 1 x 1 cm in size was observed at the G
dorsal aspect of the mid-middle-phalanx level;
H H
d. Proximal Interphalangeal Joints: lacterations over proximal
I interphalangeal joints of middle, ring and little finger, with I
each laceration around 2 cm. The central slips and capsules
J J
of each finger suffered an 80% cut;
K e. Right upper back: A 5 cm oblique laceration over right upper K
back, deep to subcutaneous level; and
L L
f. Acute stress response was noted with suicidal ideation.
M M
21. PW 1 was followed up in the out-patient clinic on 11 July
N N
2023 and 14 August 2023. Physical examination showed that all her
O wounds were healed. The power of left elbow extension and right knee O
extension was full. There was stiffness over all proximal interphalangeal
P P
joints with 6 cm finger-tip-to-palm distance. The active ranges of flexion
Q of index finger, middle finger, ring finger and little finger proximal Q
interphalangeal joint were 70 degrees. 90 degrees, 90 degrees and 70
R R
degrees respectively. Elson test was negative over middle to little fingers.
S X-rays of right index finger showed healing of fusion site. S
T T
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22. PW1 was referred to the Physiotherapy Department of the
C United Christian Hospital for treatment. From 18 September 2023 and 19 C
February 2024, PW1 attended a total of 3 physiotherapy treatment sessions
D D
and reported 60% subjective improvement with physiotherapy on 26
E October 2023. E
F F
23. PW1 was also referred to the Department of Occupational
G Therapy of the United Christian Hospital for remedial class treatment. G
PW1 attend 1 session of treatment on 21 November 2023.
H H
I 24. Another statement was taken from PW1 on 21 May 2024 I
explaining her recent medical conditions. According to PW1, since the
J J
incident, she was required to attend medical appointments as a result of her
K injuries. She could not carry heavy goods with her right fingers. She K
would also feel pain at her upper left arm at night from time to time and
L L
could not fall into sleep because of the pain. She experienced weakness at
M her right anterior thigh and would from time to time experience muscle M
spasm. Further, at night, she would have nightmares recalling this incident.
N N
O O
P P
Q Q
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S S
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