區域法院（刑事）District Judge Ada Yim31/10/2024[2024] HKDC 2002
DCCC103/2024
A A
B B
DCCC 103/2024
C [2024] HKDC 2002 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 103 OF 2024
F F
---------------------
G G
HKSAR
H v H
NGHIEM Wai-man
I I
---------------------
J J
Before: District Judge Ada Yim in Court
K K
Date: 1 November 2024
L Present: Ms. CHEUNG Mung Ting, Amber, Public Prosecutor, for L
HKSAR
M M
Miss ZAHIR Yasmine, instructed by Alvin Cheng & Rosaline
N N
Choy, assigned by the Director of Legal Aid, for the defendant
O O
Offence: [1] Wounding with intent（有意圖而傷人）
P P
Q -------------------------------------- Q
REASONS FOR SENTENCE
R R
--------------------------------------
S S
1. The defendant was charged for one count of wounding with
T T
intent, contrary to section 17(a) of the Offences against the Person
U U
V V
-2-
A A
B B
Ordinance, Cap.212. The defendant pleaded guilty and admitted the facts.
C He was convicted accordingly. C
2. The defendant is 23 years old at the time of conviction; in
D D
principle, he is eligible for detention in a detention centre. Given that this
E is his first conviction and given the circumstances of the commission of the E
offence, I find it prudent to call for a detention centre report and a
F F
background report before sentencing him.
G G
FACTS
H H
I 3. The defendant’s mother and the victim were unmarried couple. I
The defendant resided with them. The family of three moved to their new
J J
residence on 30 October 2023.
K K
4. At around 2215 that night, whilst the defendant and the victim
L L
were looking for cooking appliances, they had a dispute. In a heat, the
M defendant used a ceramic knife to stab the victim’s abdomen and chest area M
for several times. The two struggle with each other, the mother came out
N N
from the bathroom and separated them. The victim escaped to the ground
O floor and later conveyed to QEH in an unconscious state. O
P P
5. The defendant was arrested and admitted stabbing the victim
Q Q
out of anger and that their relationship was poor under caution.
R R
6. In a subsequent VRI, the defendant said whilst they were
S S
looking for cooking appliances, the victim suddenly scolded him in
T Vietnamese. He picked up the knife nearby handed it over and asked the T
victim to kill him if he hated him. The victim did not pick up the knife but
U U
V V
-3-
A A
B B
punched his face instead. In a heat, he used the knife to stab against the
C victim several times; he stopped when he heard the victim said “I am dead”. C
The mother showed up and separated them.
D D
E 7. The victim sustained multiple chest wall and upper limb E
lacerations and had unstable vital signs on admission to QEH with bleeding
F F
from his wounds. He received urgent surgery, chest drains were inserted
G for pneumorthoraces, right anterior chest wall hematoma with bleeding G
from a branch of right axillary artery, hematoma along the lateral aspect of
H H
left lower chest/upper abdominal wall with active bleeding were noted,
I injured tendons, ligaments, and nerves were repaired. Thereafter he I
remained in ICU until his condition stabilized and was transferred to
J J
Orthopaedics and Traumatology ward on 5 November 2023. He was later
K transferred to KH for further rehabilitation, the discharge date unknown. K
L L
M 8. The victim was seen at the out-patient department on 16 M
November, 2023 with wounds well and residual numbness was noted over
N N
right middle finger, left index and middle finger numbness. Out-patient
O O
physiotherapy and occupational therapy is ongoing. Number of sick leave
P
also unknown, the information is not available due to lack of consent from P
the victim.
Q Q
R R
BACKGROUND / MITIGATION
S S
T 9. From the defence mitigation and the defendant’s reports. The T
defendant aged 23, clear record and was educated up to From 4. He was
U U
V V
-4-
A A
B B
born out of wedlock and the father deserted the family in 2007 when he
C was 5 to 6. The mother later entered into a relationship with the victim (it C
is still an ongoing relationship), the defendant has been living with the
D D
victim for ten years since he was around 12 studying primary 6.
E E
10. The defendant started working as a part-time waiter in 2018
F F
when he was a Form three student, earning a few thousand per month. He
G left school after completing his repeated year of Form Four in July 2020. G
he continued to work as a part-time waiter up to May 2021 thereafter he
H H
became idle at home. At the time of the offence, the victim has been the
I breadwinner of the family though he was a heroin abuser. I
J J
11. Since his birth, the defendant lived with his family but they
K had no fixed abode. After the father deserted the family, the defendant was K
raised by his mother single-handedly. However, due to the mother repeated
L L
imprisonment and lack of parenting skill; she failed to exercise proper and
M adequate supervision over the defendant. M
N N
12. Since 2014, the defendant was made to live with the victim,
O O
their relationship was fair initially, but turned sour after two years as the
P victim always disputed with him over trivial matters. Criticisms from the P
victim were on a very frequent basis, anything went wrong at home, the
Q Q
victim would attribute blame to the defendant, yelling at him, frequently
R criticize him being lazy and useless; the mother would not intervene and R
defendant used to remain silent. The mother noted that the defendant
S S
turned unmotivated in study and his school result deteriorated sharply and
T usually kept mute at home and seldom talked to her. The mother is in Court T
U U
V V
-5-
A A
B B
to show her support and will continue to support the rehabilitation of her
C son. C
D D
13. On the day in question, the family moved to their new
E residence, the defendant felt very tired and lost control. The defendant E
accepted that on this occasion he has acted extremely rashly without
F F
thinking properly about the consequences. The defendant was deeply
G remorseful and regretful of the serious injuries caused. The mother was G
sorrowful towards the present incident and pleaded for leniency.
H H
I I
14. The defendant made full and frank admission at the scene and
J remained cooperative during investigation. He has been on remand for a J
year. He understands that given the severity of the offence, he is facing a
K K
prison sentence. Upon the conclusion of this case, the defendant intends
L to move out, and engage the assistance of social welfare groups to find L
alternative accommodation.
M M
N SENTENCE N
O O
15. The maximum sentence on conviction upon indictment for
P the offence of wounding with intent is that of life imprisonment. P
Depending on the facts, the usual sentence is between 3 and 12 years. The
Q Q
gravity of the offence lies in the deliberate resort to violence with the intent
R by the offender to inflict by such violence really serious harm on the victim. R
S S
16. In HKSAR v Chan Chun Tat CACC 317/2012, The Court of
T Appeal stated that in determining the gravity of the offence, the factor of T
primary importance is the intent of the assailant to cause the victim really
U U
V V
-6-
A A
B B
serious bodily harm. Whether that intent was fully realized in the injuries
C sought to be inflicted has been said to be of “secondary significance”. As C
the consequences to the victim may not be as the assailant
D D
intended. Tragically, they may be worse, but even when they are not or
E they are not as bad as the assailant hoped to achieve that may not lessen E
the gravity of the offence. For the failure of the offender to achieve the
F F
level of harm he intended may be due to resistance by the victim, the
G intervention of others, speedy medical attention or purely unanticipated G
fortuitous circumstances. The Court of Appeal also identified certain usual
H H
factors relevant in sentencing:
I • the extent to which the assault was premeditated, I
• the reasons or motivation underlying the assault upon the victim,
J J
• the mental or emotional state of the assailant at the time of the assault,
K whether alcohol or drugs contributed to the actions of the assailant, K
• whether the assault was committed by the assailant alone or as part
L L
of a group,
M
• the type of weapons employed, M
N • the level of force or aggression and the persistence with which the N
assault was pressed home,
O O
• the injuries caused to the victim and the effect of the assault upon
P the victim and those close to him or her. P
Q Q
17. The present case came within the category of domestic
R violence, yet it was not simply a typical type of domestic violence where R
an angry argument escalates out of control and one party resorts to violence.
S S
There is more to this incident than its first appearances might suggest.
T T
U U
V V
-7-
A A
B B
18. The defendant agreed the content of the reports in general. As
C revealed in the reports, the present case was a family tragedy after a long- C
term unresolved family conflict. The defendant started living with the
D D
victim when he was in primary Six, he was a victim of child abuse and has
E been subject to emotional abuse form the victim over the years. The E
mother was unable to handle the ongoing tension properly and only asked
F F
the defendant to be tolerant in the conflict. On this occasion, during one
G of their usual family episode, the verbal abuse turned physical for the first G
time, following a punch from the victim, out of momentary anger, the
H H
defendant committed the present offence.
I I
19. Knife is a potential lethal weapon. Yet there was no
J J
premeditation; it just happened that he had a knife in his hand. The victim,
K however, sustained really serious injuries and stayed in ICU for 5 days. K
Residual numbness was noted on 16 November 2023 over his fingers and
L L
on-going out-patient physiotherapy and occupational therapy required.
M M
N 20. As observed by the officer who prepared the DC report, N
throughout the interview, the defendant was polite and cooperative in
O O
disclosing his background information. He apologized to the victim and
P his mother. He showed sense of remorse and promised to behave in future. P
In discussing his future, he planned to obtain a driving license after settling
Q Q
the present case. Likewise, the probation officer is of the view that the
R defendant was out of mind in the incident and he was truly remorseful of R
his impulsiveness.
S S
T T
U U
V V
-8-
A A
B B
21. The medical officer has confirmed that the defendant is
C medically unfit for detention in a Detention Centre, that being the case, C
imprisonment is the only sentencing option. Having consider the age and
D D
the character of the defendant, the background of this domestic violence,
E the circumstance of the wounding, the attitude of the defendant after the E
incident and the injuries caused. I consider the appropriate starting point
F F
to be one of 39 months. The defendant is entitled to 1/3 discount for his
G guilty plea. G
H H
ORDER
I I
Sentenced to 26 months’ imprisonment
J J
K K
L L
( Ada Yim )
District Judge
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 103/2024
C [2024] HKDC 2002 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 103 OF 2024
F F
---------------------
G G
HKSAR
H v H
NGHIEM Wai-man
I I
---------------------
J J
Before: District Judge Ada Yim in Court
K K
Date: 1 November 2024
L Present: Ms. CHEUNG Mung Ting, Amber, Public Prosecutor, for L
HKSAR
M M
Miss ZAHIR Yasmine, instructed by Alvin Cheng & Rosaline
N N
Choy, assigned by the Director of Legal Aid, for the defendant
O O
Offence: [1] Wounding with intent（有意圖而傷人）
P P
Q -------------------------------------- Q
REASONS FOR SENTENCE
R R
--------------------------------------
S S
1. The defendant was charged for one count of wounding with
T T
intent, contrary to section 17(a) of the Offences against the Person
U U
V V
-2-
A A
B B
Ordinance, Cap.212. The defendant pleaded guilty and admitted the facts.
C He was convicted accordingly. C
2. The defendant is 23 years old at the time of conviction; in
D D
principle, he is eligible for detention in a detention centre. Given that this
E is his first conviction and given the circumstances of the commission of the E
offence, I find it prudent to call for a detention centre report and a
F F
background report before sentencing him.
G G
FACTS
H H
I 3. The defendant’s mother and the victim were unmarried couple. I
The defendant resided with them. The family of three moved to their new
J J
residence on 30 October 2023.
K K
4. At around 2215 that night, whilst the defendant and the victim
L L
were looking for cooking appliances, they had a dispute. In a heat, the
M defendant used a ceramic knife to stab the victim’s abdomen and chest area M
for several times. The two struggle with each other, the mother came out
N N
from the bathroom and separated them. The victim escaped to the ground
O floor and later conveyed to QEH in an unconscious state. O
P P
5. The defendant was arrested and admitted stabbing the victim
Q Q
out of anger and that their relationship was poor under caution.
R R
6. In a subsequent VRI, the defendant said whilst they were
S S
looking for cooking appliances, the victim suddenly scolded him in
T Vietnamese. He picked up the knife nearby handed it over and asked the T
victim to kill him if he hated him. The victim did not pick up the knife but
U U
V V
-3-
A A
B B
punched his face instead. In a heat, he used the knife to stab against the
C victim several times; he stopped when he heard the victim said “I am dead”. C
The mother showed up and separated them.
D D
E 7. The victim sustained multiple chest wall and upper limb E
lacerations and had unstable vital signs on admission to QEH with bleeding
F F
from his wounds. He received urgent surgery, chest drains were inserted
G for pneumorthoraces, right anterior chest wall hematoma with bleeding G
from a branch of right axillary artery, hematoma along the lateral aspect of
H H
left lower chest/upper abdominal wall with active bleeding were noted,
I injured tendons, ligaments, and nerves were repaired. Thereafter he I
remained in ICU until his condition stabilized and was transferred to
J J
Orthopaedics and Traumatology ward on 5 November 2023. He was later
K transferred to KH for further rehabilitation, the discharge date unknown. K
L L
M 8. The victim was seen at the out-patient department on 16 M
November, 2023 with wounds well and residual numbness was noted over
N N
right middle finger, left index and middle finger numbness. Out-patient
O O
physiotherapy and occupational therapy is ongoing. Number of sick leave
P
also unknown, the information is not available due to lack of consent from P
the victim.
Q Q
R R
BACKGROUND / MITIGATION
S S
T 9. From the defence mitigation and the defendant’s reports. The T
defendant aged 23, clear record and was educated up to From 4. He was
U U
V V
-4-
A A
B B
born out of wedlock and the father deserted the family in 2007 when he
C was 5 to 6. The mother later entered into a relationship with the victim (it C
is still an ongoing relationship), the defendant has been living with the
D D
victim for ten years since he was around 12 studying primary 6.
E E
10. The defendant started working as a part-time waiter in 2018
F F
when he was a Form three student, earning a few thousand per month. He
G left school after completing his repeated year of Form Four in July 2020. G
he continued to work as a part-time waiter up to May 2021 thereafter he
H H
became idle at home. At the time of the offence, the victim has been the
I breadwinner of the family though he was a heroin abuser. I
J J
11. Since his birth, the defendant lived with his family but they
K had no fixed abode. After the father deserted the family, the defendant was K
raised by his mother single-handedly. However, due to the mother repeated
L L
imprisonment and lack of parenting skill; she failed to exercise proper and
M adequate supervision over the defendant. M
N N
12. Since 2014, the defendant was made to live with the victim,
O O
their relationship was fair initially, but turned sour after two years as the
P victim always disputed with him over trivial matters. Criticisms from the P
victim were on a very frequent basis, anything went wrong at home, the
Q Q
victim would attribute blame to the defendant, yelling at him, frequently
R criticize him being lazy and useless; the mother would not intervene and R
defendant used to remain silent. The mother noted that the defendant
S S
turned unmotivated in study and his school result deteriorated sharply and
T usually kept mute at home and seldom talked to her. The mother is in Court T
U U
V V
-5-
A A
B B
to show her support and will continue to support the rehabilitation of her
C son. C
D D
13. On the day in question, the family moved to their new
E residence, the defendant felt very tired and lost control. The defendant E
accepted that on this occasion he has acted extremely rashly without
F F
thinking properly about the consequences. The defendant was deeply
G remorseful and regretful of the serious injuries caused. The mother was G
sorrowful towards the present incident and pleaded for leniency.
H H
I I
14. The defendant made full and frank admission at the scene and
J remained cooperative during investigation. He has been on remand for a J
year. He understands that given the severity of the offence, he is facing a
K K
prison sentence. Upon the conclusion of this case, the defendant intends
L to move out, and engage the assistance of social welfare groups to find L
alternative accommodation.
M M
N SENTENCE N
O O
15. The maximum sentence on conviction upon indictment for
P the offence of wounding with intent is that of life imprisonment. P
Depending on the facts, the usual sentence is between 3 and 12 years. The
Q Q
gravity of the offence lies in the deliberate resort to violence with the intent
R by the offender to inflict by such violence really serious harm on the victim. R
S S
16. In HKSAR v Chan Chun Tat CACC 317/2012, The Court of
T Appeal stated that in determining the gravity of the offence, the factor of T
primary importance is the intent of the assailant to cause the victim really
U U
V V
-6-
A A
B B
serious bodily harm. Whether that intent was fully realized in the injuries
C sought to be inflicted has been said to be of “secondary significance”. As C
the consequences to the victim may not be as the assailant
D D
intended. Tragically, they may be worse, but even when they are not or
E they are not as bad as the assailant hoped to achieve that may not lessen E
the gravity of the offence. For the failure of the offender to achieve the
F F
level of harm he intended may be due to resistance by the victim, the
G intervention of others, speedy medical attention or purely unanticipated G
fortuitous circumstances. The Court of Appeal also identified certain usual
H H
factors relevant in sentencing:
I • the extent to which the assault was premeditated, I
• the reasons or motivation underlying the assault upon the victim,
J J
• the mental or emotional state of the assailant at the time of the assault,
K whether alcohol or drugs contributed to the actions of the assailant, K
• whether the assault was committed by the assailant alone or as part
L L
of a group,
M
• the type of weapons employed, M
N • the level of force or aggression and the persistence with which the N
assault was pressed home,
O O
• the injuries caused to the victim and the effect of the assault upon
P the victim and those close to him or her. P
Q Q
17. The present case came within the category of domestic
R violence, yet it was not simply a typical type of domestic violence where R
an angry argument escalates out of control and one party resorts to violence.
S S
There is more to this incident than its first appearances might suggest.
T T
U U
V V
-7-
A A
B B
18. The defendant agreed the content of the reports in general. As
C revealed in the reports, the present case was a family tragedy after a long- C
term unresolved family conflict. The defendant started living with the
D D
victim when he was in primary Six, he was a victim of child abuse and has
E been subject to emotional abuse form the victim over the years. The E
mother was unable to handle the ongoing tension properly and only asked
F F
the defendant to be tolerant in the conflict. On this occasion, during one
G of their usual family episode, the verbal abuse turned physical for the first G
time, following a punch from the victim, out of momentary anger, the
H H
defendant committed the present offence.
I I
19. Knife is a potential lethal weapon. Yet there was no
J J
premeditation; it just happened that he had a knife in his hand. The victim,
K however, sustained really serious injuries and stayed in ICU for 5 days. K
Residual numbness was noted on 16 November 2023 over his fingers and
L L
on-going out-patient physiotherapy and occupational therapy required.
M M
N 20. As observed by the officer who prepared the DC report, N
throughout the interview, the defendant was polite and cooperative in
O O
disclosing his background information. He apologized to the victim and
P his mother. He showed sense of remorse and promised to behave in future. P
In discussing his future, he planned to obtain a driving license after settling
Q Q
the present case. Likewise, the probation officer is of the view that the
R defendant was out of mind in the incident and he was truly remorseful of R
his impulsiveness.
S S
T T
U U
V V
-8-
A A
B B
21. The medical officer has confirmed that the defendant is
C medically unfit for detention in a Detention Centre, that being the case, C
imprisonment is the only sentencing option. Having consider the age and
D D
the character of the defendant, the background of this domestic violence,
E the circumstance of the wounding, the attitude of the defendant after the E
incident and the injuries caused. I consider the appropriate starting point
F F
to be one of 39 months. The defendant is entitled to 1/3 discount for his
G guilty plea. G
H H
ORDER
I I
Sentenced to 26 months’ imprisonment
J J
K K
L L
( Ada Yim )
District Judge
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V