A A
B B
DCCC 1115/2020
C [2021] HKDC 972 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1115 OF 2020
F F
G ---------------------------- G
HKSAR
H H
v
I NIP CHING WAI I
----------------------------
J J
K Before: His Honour Judge Tam in Court K
Date: 4 August 2021
L L
Present: Mr Simon Ng K C, Counsel on fiat, for HKSAR
M Mr Foster Yim Hong Cheuk, instructed by K B Chau & Co, M
assigned by the Director of Legal Aid, for the defendant
N N
Offence: [1], [3] & [5] Common assault (普通襲擊)
O O
[2] & [4] Assault occasioning actual bodily harm (襲擊他人
P 致造成身體傷害) P
[6] & [8] Criminal damage (刑事損壞)
Q Q
[7] Wounding with intent (有意圖而傷人)
R R
[9] Possession of an offensive weapon in a public place (在公
S 眾地方管有攻擊性武器) S
T T
U U
V V
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A A
B B
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C REASONS FOR SENTENCE C
---------------------------------------
D D
E 1. Mr Nip pleaded guilty before me to 9 charges on a Charge E
Sheet as follows.
F F
G 2. Charge 1 is Common assault, contrary to Common Law and G
punishable under section 40 of the Offences against the Person Ordinance,
H H
Cap 212. Particulars are that he, on 31 August 2016, at Ground Floor, Sha
I Tin Public Library, No 1 Yuen Wo Road, Sha Tin, New Territories, in I
Hong Kong, assaulted Leung Wai Man.
J J
K 3. Charge 2 is Assault occasioning actual bodily harm, contrary K
to Common Law and punishable under section 39 of the Offences against
L L
the Person Ordinance, Cap 212. Particulars are that he, on 23 June 2017,
M outside MTR Sha Tin Wai Station, Shatin, New Territories, in Hong Kong, M
assaulted Leung Wai Man, thereby occasionally him actual bodily harm.
N N
O 4. Charge 3 is Common assault. Particulars are that he, on O
5 August 2017, near the entrance of the market, Shui Chuen O Estate, Sha
P P
Tin, New Territories, in Hong Kong, assaulted Leung Wai Man.
Q Q
5. Charge 4 is Assault occasioning actual bodily harm.
R R
Particulars are that he, on 26 October 2019, outside Pok Chi House, Pok
S Hong Estate, Sha Tin, New Territories, in Hong Kong, assaulted Leung S
Wai Man, thereby occasioning him actual bodily harm.
T T
U U
V V
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A A
B B
6. Charge 5 is Common assault. Particulars are that he, on a day
C unknown in early 2020, at the bus terminus, Shui Chuen O Estate, Sha Tin, C
New Territories, in Hong Kong, assaulted Leung Wai Man.
D D
E 7. Charge 6 is Criminal damage, contrary to section 60(1) of the E
Crimes Ordinance, Cap 200. Particulars are that he, on a day unknown in
F F
early 2020, at the bus terminus, Shui Chuen O Estate, Sha Tin, New
G Territories, in Hong Kong, without lawful excuse damaged one pair of G
glasses, being property belonging to Leung Wai Man, intending to damage
H H
such property or being reckless as to whether such property would be
I damaged. I
J J
8. Charge 7 is Wounding with intent, contrary to section 17(a)
K of the Offences against the Person Ordinance, Cap 212. Particulars are that K
he, on 23 June 2020, outside Yuen Chau Kok Complex, No 35 Ngan Shing
L L
Street, Sha Tin, New Territories, in Hong Kong, unlawfully and
M maliciously wounded Leung Wai Man with intent to do him grievous M
bodily harm.
N N
O 9. Charge 8 is Criminal damage. Particulars are that he, on O
23 June 2020, outside Yuen Chau Kok Complex, without lawful excuse
P P
damaged one pair of glasses, being property belonging to Leung Wai Man,
Q intending to damage such property or being reckless as to whether such Q
property would be damaged.
R R
S 10. Charge 9 is Possession of an offensive weapon in a public S
place, contrary to section 33(1) and (2) of the Public Order Ordinance, Cap
T T
245. Particulars are that he, on 29 June 2020, in a public place at lift lobby,
U U
V V
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A A
B B
8th Floor, Shan Chuen House, Shui Chuen O Estate, Sha Tin, New
C Territories, in Hong Kong, without lawful authority or reasonable excuse, C
had with him an offensive weapon, namely one hammer.
D D
E Summary of the facts admitted by Mr Nip E
F F
11. Because of some minor incidents in March to May 2016,
G Mr Nip began to harbor a grudge against Leung Wai Man (PW1). G
H H
Charge 1 Common assault
I I
12. On 31 August 2016, in a public library, Mr Nip glared at PW1
J J
and later hit his neck from behind with a hard object. Mr Nip then left
K without saying a word. K
L L
Charge 2 AOABH
M M
13. On 23 June 2017, outside an MTR Station, Mr Nip came head-
N N
on with PW1 and punched the corner of PW1’s left eye once without saying
O anything. Before Mr Nip could punch him again, PW1 ran. Medical O
examination found PW1 to have peri-orbital bruise and conjunctival
P P
injection on his left eye.
Q Q
Charge 3 Common assault
R R
S 14. On 5 August 2017, at G/F, at Shui Chuen O Plaza, Mr Nip S
glared at PW1 without saying anything. PW1 avoided Mr Nip by walking
T T
towards the market of a nearby estate. Mr Nip followed suit. Near the
U U
V V
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A A
B B
entrance of the market, Mr Nip caught up with PW1 and tried to punch him
C in the face with his left fist. PW1 blocked the attack with both hands. C
Mr Nip kicked PW1’s bum bag. PW1 shouted and pleaded with Mr Nip.
D D
A passer-by intervened. Mr Nip swore at the passer-by and left.
E E
Charge 4 AOABH
F F
G 15. On 26 October 2019, outside Pok Chi House, Pok Hong Estate, G
Mr Nip rushed towards PW1 and hit the top of his head and his right
H H
forehead with a wooden rod. PW1 tried to block the attack with his hand.
I Mr Nip fled. PW1 was later found to have sustained (i) swelling and I
tenderness over left occipital region; (ii) swelling over right wrist; and (iii)
J J
abrasion wound over bilateral hand.
K K
Charge 5 Common assault and Charge 6 Criminal damage
L L
M 16. On a day unknown in early 2020, at a bus terminus, Mr Nip M
punched PW1 in the head for a few times. PW1 tried to block the attacks
N N
with his hands. His glasses also fell. Mr Nip stepped on those glasses a
O few times resulting in damage. PW1 ran away. O
P P
Charge 7 Wounding with intent and Charge 8 Criminal damage
Q Q
17. On 23 June 2020, in a public library, PW1 saw Mr Nip and
R R
avoided him. Twenty minutes later, when PW1 left the library, he saw
S Mr Nip standing at a place nearby. PW1 asked Mr Nip not to hit him as he S
had heart disease. After PW1 turned around, the left side of his head was
T T
hit with a hard object from behind. PW1 fell and his glasses also fell.
U U
V V
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A A
B B
Mr Nip then tried to hit PW1’s upper body with a hammer; PW1 blocked
C the attack with his left arm. Mr Nip then hit PW1’s left forehead with the C
hammer. Mr Nip also stepped on PW1’s glasses before kicking them away.
D D
He then left.
E E
18. PW1 was later found to have sustained (i) 5 cm laceration on
F F
left scalp with active bleeding; and (ii) tenderness and swelling over left
G forearm. PW1 stayed in hospital for treatment for 6 days. G
H H
Charge 9
I I
19. On 29 June 2020, ie the same day PW1 was discharged from
J J
hospital, police intercepted Mr Nip at the lift lobby outside his residence.
K Mr Nip was arrested for “Wounding” and “Criminal damage”. At that time, K
he was carrying a backpack. Police later found a hammer in the backpack.
L L
Under caution, Mr Nip stated that the hammer was carried for the purpose
M of self-defence in light of recent riotous events. M
N N
20. PW1 later recognized the said hammer as the weapon used for
O the attack under Charge 7. O
P P
Criminal record
Q Q
21. Mr Nip has one criminal record not similar in 2010 for which
R R
he was sentenced to serve a term of 21 days in prison.
S S
T T
U U
V V
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A A
B B
Antecedents
C C
22. Mr Nip is aged 36 (31 to 35 at the time of the offences),
D D
educated to secondary 2 level, used to work as a container hauler but
E unemployed since 2019. Mr Nip is single. E
F F
Psychologist’s report
G G
23. On 21 July 2021, I ordered a psychologist’s report on Mr Nip.
H H
The report that came back concluded that Mr Nip did not exhibit features
I of any major psychopathology; however, his risk of violent re-offending I
was assessed as moderate and fell on the upper-half range.
J J
K Mitigation K
L L
24. Mr Foster Yim of counsel assigned by the Director of Legal
M Aid mitigated on behalf of Mr Nip. M
N N
25. The following is a summary of the mitigation submissions.
O O
26. Before his arrest, Mr Nip was living with his 70-year-old
P P
father in public housing in Shatin. Mr Nip has grudges with the victim in
Q or around early 2016. Q
R R
27. Mr Yim submitted that Charge 7, wounding with intent, is the
S most serious of the 9 charges. Mr Yim referred to the case Secretary for S
Justice v Hung Kar Chun [2011] 1 HKLRD 1083. It was submitted that
T T
Mr Nip used a hammer and that the attack (after the previous 5 incidents)
U U
V V
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A A
B B
could not be said to be unpremeditated. It was submitted that the injury
C suffered by the victim was much less serious than that in Hung Kar Chun C
and therefore a starting point of 12 months could well reflect the culpability
D D
of Mr Nip.
E E
28. As regards Charge 9, possession of offensive weapon,
F F
Mr Yim submitted that given its minor nature as compared with a knife, a
G starting point of 6 months would adequately reflect the seriousness of the G
case.
H H
I 29. Furthermore, Mr Yim submitted that a starting point of I
3 weeks for the common assault charges, a starting point of 6 weeks for the
J J
criminal damage charges and a starting point of 3 months for AOABH
K charges would be appropriate. K
L L
30. It was submitted that Charges 5 & 6 arose out of the same
M incident; and Charges 7 to 9 arose out of another incident; therefore the M
sentences on Charges 5 & 6 should be allowed to run concurrently and that
N N
similarly, the sentences on Charges 7 to 9 should also be allowed to run
O concurrently. After being reminded that the offence under Charge 9 O
happened on a later date, Mr Yim conceded that it should be dealt with
P P
separately.
Q Q
31. Mr Yim asked the court to take into account the totality
R R
principle and impose a sentence that would allow Mr Nip an immediate
S release. S
T T
U U
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A A
B B
32. In the end, Mr Yim fell back to reality and suggested a starting
C point of 3 years’ imprisonment for Charge 7. C
D D
33. After explaining the psychologist’s report to Mr Nip and upon
E taking further instructions, Mr Yim submitted that Mr Nip is absolutely E
normal and promises that he will not re-offend.
F F
G Sentence G
H H
34. At my request and without objection from the Defence, the
I prosecution submitted a photo album mainly to show the injuries and the I
shape and size of the subject hammer.
J J
K 35. The offences spanned from August 2016 to June 2020, a K
period of almost 4 years.
L L
M 36. As was correctly recognized by Mr Yim for Mr Nip, the most M
serious offence is that of wounding with intent.
N N
O 37. In Hung Kar Chun, supra, it was held that while there were O
no sentencing guidelines for that offence, sentences should range between
P P
3 and 12 years’ imprisonment. In my judgment, as the facts of each case
Q and the circumstances of each defendant can vary so much from the next, Q
it is not helpful to compare the sentences imposed in different cases.
R R
S 38. The hammer used for the attack under Charge 7 is one-foot S
long and belongs to the category of a medium-size home-use hammer.
T T
Fortunately, the injuries sustained were not too serious. However, one
U U
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A A
B B
cannot ignore the fact the one of the blows that landed on the victim’s head
C was thrown from behind. This is cowardly, evil and insidious. Because of C
the stealthiness of the attack, there is no direct evidence of what weapon
D D
was used. Giving the benefit of the doubt to Mr Nip, I accept that it could
E be a fist. E
F F
39. Taking all of his conduct as a whole in this episode of
G wounding with intent to cause grievous bodily harm, I am of the view a G
basic starting point of less than 3 years and 3 months would be unrealistic.
H H
Because this attack on the victim was the 6th in a series of attacks over a
I period of almost 4 years, I add a period of 3 months as reflection of this I
aggravating factor. For this reason, I adopt 3 years and 6 months as the
J J
final starting point for Charge 7.
K K
40. As for Charge 8, this is the second time (the first was under
L L
Charge 6) that Mr Nip destroyed the victim’s glasses. This is a particularly
M heinous example of damaging another person’s property because it caused M
a lot of inconvenience to the user not only on the day itself but also for a
N N
considerable period thereafter when a new pair of glasses was being
O prepared. For the aggravating factor of the repeated commission of the O
same offence, I shall add 6 days to the basic starting point of 42 days
P P
resulting in a 48 days’ final starting point.
Q Q
41. For Charges 1 and 2, I will accede to Mr Yim’s suggestion of
R R
a starting point of 21 days and 3 months respectively.
S S
42. For Charge 3, because of the repeated commission of the same
T T
offence as that under Charge 1, I will adopt a starting point of 24 days.
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A A
B B
C 43. For Charge 4, because of the repeated commission of the same C
offence as that under Charge 2, I will adopt a starting point of 3 months
D D
and 15 days.
E E
44. For Charge 5, because of the repeated commission of the same
F F
offence as those under Charges 1 and 3, I will adopt a starting point of
G 27 days. G
H H
45. For Charge 6, I will accede to Mr Yim’s suggestion of a
I starting point of 42 days. I
J J
46. For Charge 9, the maximum penalty is 3 years’ imprisonment.
K The hammer possessed is in no way a light weapon and could cause serious K
injury even death in some cases if used on the head. Giving weight to the
L L
mitigating explanation that it was only to be used as a defensive weapon, I
M shall adopt a lower starting point of 9 months’ imprisonment. M
N N
47. Save for the offences subject of Charges 5 and 6 (as a pair)
O and Charges 7 and 8 (as another pair) for which separately concurrent O
sentences could be considered, the other offences all occurred on different
P P
dates and at different places and therefore consecutive sentences are called
Q for subject only to totality. Q
R R
48. Given that the whole course of conduct spanned almost
S 4 years resulting in the victim having to undergo a continuous period of S
frightful ordeal for the same period, I consider a global starting point of
T T
4 years to be fully justified. I am satisfied this will give Mr Nip sufficient
U U
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A A
B B
deterrence against his re-offending given that the only time that he was
C imprisoned previously was for a term of 21 days in 2010. C
D D
49. Mr Nip pleaded guilty in time for which he shall be entitled to
E a 1/3 discount. I can see no other mitigating factors of sufficient weight to E
warrant further discounts.
F F
G 50. I will impose the following individual sentences on Mr Nip. G
H H
(Mr Nip, please stand)
I I
51. For Charge 1, the prison term is 14 days.
J J
K 52. For Charge 2, the prison term is 2 months. K
L L
53. For Charge 3, the prison term is 16 days.
M M
54. For Charge 4, the prison term is 2 months and 10 days.
N N
O 55. For Charge 5, the prison term is 18 days. O
P P
56. For Charge 6, the prison term is 28 days.
Q Q
57. For Charge 7, the prison term is 2 years and 4 months.
R R
S 58. For Charge 8, the prison term is 32 days. S
T T
59. For Charge 9, the prison term is 6 months.
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A A
B B
C 60. I order that the sentences on Charges 5 & 6 are to run C
concurrently as Group A. I order that the sentences on Charges 7 & 8 are
D D
to run concurrently as Group B.
E E
61. After considering totality, I order that the sentences on
F F
Charges 1, 2, 3, 4, 9 and on Group A are to be served concurrently among
G themselves but 4 months of this set of concurrent sentences (ie 6 months) G
are to be served consecutively to the sentence on Group B (ie 28 months),
H H
resulting in an aggregate sentence of 32 months’ imprisonment.
I I
J J
K K
L L
( Isaac Tam )
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 1115/2020
C [2021] HKDC 972 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1115 OF 2020
F F
G ---------------------------- G
HKSAR
H H
v
I NIP CHING WAI I
----------------------------
J J
K Before: His Honour Judge Tam in Court K
Date: 4 August 2021
L L
Present: Mr Simon Ng K C, Counsel on fiat, for HKSAR
M Mr Foster Yim Hong Cheuk, instructed by K B Chau & Co, M
assigned by the Director of Legal Aid, for the defendant
N N
Offence: [1], [3] & [5] Common assault (普通襲擊)
O O
[2] & [4] Assault occasioning actual bodily harm (襲擊他人
P 致造成身體傷害) P
[6] & [8] Criminal damage (刑事損壞)
Q Q
[7] Wounding with intent (有意圖而傷人)
R R
[9] Possession of an offensive weapon in a public place (在公
S 眾地方管有攻擊性武器) S
T T
U U
V V
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A A
B B
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C REASONS FOR SENTENCE C
---------------------------------------
D D
E 1. Mr Nip pleaded guilty before me to 9 charges on a Charge E
Sheet as follows.
F F
G 2. Charge 1 is Common assault, contrary to Common Law and G
punishable under section 40 of the Offences against the Person Ordinance,
H H
Cap 212. Particulars are that he, on 31 August 2016, at Ground Floor, Sha
I Tin Public Library, No 1 Yuen Wo Road, Sha Tin, New Territories, in I
Hong Kong, assaulted Leung Wai Man.
J J
K 3. Charge 2 is Assault occasioning actual bodily harm, contrary K
to Common Law and punishable under section 39 of the Offences against
L L
the Person Ordinance, Cap 212. Particulars are that he, on 23 June 2017,
M outside MTR Sha Tin Wai Station, Shatin, New Territories, in Hong Kong, M
assaulted Leung Wai Man, thereby occasionally him actual bodily harm.
N N
O 4. Charge 3 is Common assault. Particulars are that he, on O
5 August 2017, near the entrance of the market, Shui Chuen O Estate, Sha
P P
Tin, New Territories, in Hong Kong, assaulted Leung Wai Man.
Q Q
5. Charge 4 is Assault occasioning actual bodily harm.
R R
Particulars are that he, on 26 October 2019, outside Pok Chi House, Pok
S Hong Estate, Sha Tin, New Territories, in Hong Kong, assaulted Leung S
Wai Man, thereby occasioning him actual bodily harm.
T T
U U
V V
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A A
B B
6. Charge 5 is Common assault. Particulars are that he, on a day
C unknown in early 2020, at the bus terminus, Shui Chuen O Estate, Sha Tin, C
New Territories, in Hong Kong, assaulted Leung Wai Man.
D D
E 7. Charge 6 is Criminal damage, contrary to section 60(1) of the E
Crimes Ordinance, Cap 200. Particulars are that he, on a day unknown in
F F
early 2020, at the bus terminus, Shui Chuen O Estate, Sha Tin, New
G Territories, in Hong Kong, without lawful excuse damaged one pair of G
glasses, being property belonging to Leung Wai Man, intending to damage
H H
such property or being reckless as to whether such property would be
I damaged. I
J J
8. Charge 7 is Wounding with intent, contrary to section 17(a)
K of the Offences against the Person Ordinance, Cap 212. Particulars are that K
he, on 23 June 2020, outside Yuen Chau Kok Complex, No 35 Ngan Shing
L L
Street, Sha Tin, New Territories, in Hong Kong, unlawfully and
M maliciously wounded Leung Wai Man with intent to do him grievous M
bodily harm.
N N
O 9. Charge 8 is Criminal damage. Particulars are that he, on O
23 June 2020, outside Yuen Chau Kok Complex, without lawful excuse
P P
damaged one pair of glasses, being property belonging to Leung Wai Man,
Q intending to damage such property or being reckless as to whether such Q
property would be damaged.
R R
S 10. Charge 9 is Possession of an offensive weapon in a public S
place, contrary to section 33(1) and (2) of the Public Order Ordinance, Cap
T T
245. Particulars are that he, on 29 June 2020, in a public place at lift lobby,
U U
V V
-4-
A A
B B
8th Floor, Shan Chuen House, Shui Chuen O Estate, Sha Tin, New
C Territories, in Hong Kong, without lawful authority or reasonable excuse, C
had with him an offensive weapon, namely one hammer.
D D
E Summary of the facts admitted by Mr Nip E
F F
11. Because of some minor incidents in March to May 2016,
G Mr Nip began to harbor a grudge against Leung Wai Man (PW1). G
H H
Charge 1 Common assault
I I
12. On 31 August 2016, in a public library, Mr Nip glared at PW1
J J
and later hit his neck from behind with a hard object. Mr Nip then left
K without saying a word. K
L L
Charge 2 AOABH
M M
13. On 23 June 2017, outside an MTR Station, Mr Nip came head-
N N
on with PW1 and punched the corner of PW1’s left eye once without saying
O anything. Before Mr Nip could punch him again, PW1 ran. Medical O
examination found PW1 to have peri-orbital bruise and conjunctival
P P
injection on his left eye.
Q Q
Charge 3 Common assault
R R
S 14. On 5 August 2017, at G/F, at Shui Chuen O Plaza, Mr Nip S
glared at PW1 without saying anything. PW1 avoided Mr Nip by walking
T T
towards the market of a nearby estate. Mr Nip followed suit. Near the
U U
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A A
B B
entrance of the market, Mr Nip caught up with PW1 and tried to punch him
C in the face with his left fist. PW1 blocked the attack with both hands. C
Mr Nip kicked PW1’s bum bag. PW1 shouted and pleaded with Mr Nip.
D D
A passer-by intervened. Mr Nip swore at the passer-by and left.
E E
Charge 4 AOABH
F F
G 15. On 26 October 2019, outside Pok Chi House, Pok Hong Estate, G
Mr Nip rushed towards PW1 and hit the top of his head and his right
H H
forehead with a wooden rod. PW1 tried to block the attack with his hand.
I Mr Nip fled. PW1 was later found to have sustained (i) swelling and I
tenderness over left occipital region; (ii) swelling over right wrist; and (iii)
J J
abrasion wound over bilateral hand.
K K
Charge 5 Common assault and Charge 6 Criminal damage
L L
M 16. On a day unknown in early 2020, at a bus terminus, Mr Nip M
punched PW1 in the head for a few times. PW1 tried to block the attacks
N N
with his hands. His glasses also fell. Mr Nip stepped on those glasses a
O few times resulting in damage. PW1 ran away. O
P P
Charge 7 Wounding with intent and Charge 8 Criminal damage
Q Q
17. On 23 June 2020, in a public library, PW1 saw Mr Nip and
R R
avoided him. Twenty minutes later, when PW1 left the library, he saw
S Mr Nip standing at a place nearby. PW1 asked Mr Nip not to hit him as he S
had heart disease. After PW1 turned around, the left side of his head was
T T
hit with a hard object from behind. PW1 fell and his glasses also fell.
U U
V V
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A A
B B
Mr Nip then tried to hit PW1’s upper body with a hammer; PW1 blocked
C the attack with his left arm. Mr Nip then hit PW1’s left forehead with the C
hammer. Mr Nip also stepped on PW1’s glasses before kicking them away.
D D
He then left.
E E
18. PW1 was later found to have sustained (i) 5 cm laceration on
F F
left scalp with active bleeding; and (ii) tenderness and swelling over left
G forearm. PW1 stayed in hospital for treatment for 6 days. G
H H
Charge 9
I I
19. On 29 June 2020, ie the same day PW1 was discharged from
J J
hospital, police intercepted Mr Nip at the lift lobby outside his residence.
K Mr Nip was arrested for “Wounding” and “Criminal damage”. At that time, K
he was carrying a backpack. Police later found a hammer in the backpack.
L L
Under caution, Mr Nip stated that the hammer was carried for the purpose
M of self-defence in light of recent riotous events. M
N N
20. PW1 later recognized the said hammer as the weapon used for
O the attack under Charge 7. O
P P
Criminal record
Q Q
21. Mr Nip has one criminal record not similar in 2010 for which
R R
he was sentenced to serve a term of 21 days in prison.
S S
T T
U U
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A A
B B
Antecedents
C C
22. Mr Nip is aged 36 (31 to 35 at the time of the offences),
D D
educated to secondary 2 level, used to work as a container hauler but
E unemployed since 2019. Mr Nip is single. E
F F
Psychologist’s report
G G
23. On 21 July 2021, I ordered a psychologist’s report on Mr Nip.
H H
The report that came back concluded that Mr Nip did not exhibit features
I of any major psychopathology; however, his risk of violent re-offending I
was assessed as moderate and fell on the upper-half range.
J J
K Mitigation K
L L
24. Mr Foster Yim of counsel assigned by the Director of Legal
M Aid mitigated on behalf of Mr Nip. M
N N
25. The following is a summary of the mitigation submissions.
O O
26. Before his arrest, Mr Nip was living with his 70-year-old
P P
father in public housing in Shatin. Mr Nip has grudges with the victim in
Q or around early 2016. Q
R R
27. Mr Yim submitted that Charge 7, wounding with intent, is the
S most serious of the 9 charges. Mr Yim referred to the case Secretary for S
Justice v Hung Kar Chun [2011] 1 HKLRD 1083. It was submitted that
T T
Mr Nip used a hammer and that the attack (after the previous 5 incidents)
U U
V V
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A A
B B
could not be said to be unpremeditated. It was submitted that the injury
C suffered by the victim was much less serious than that in Hung Kar Chun C
and therefore a starting point of 12 months could well reflect the culpability
D D
of Mr Nip.
E E
28. As regards Charge 9, possession of offensive weapon,
F F
Mr Yim submitted that given its minor nature as compared with a knife, a
G starting point of 6 months would adequately reflect the seriousness of the G
case.
H H
I 29. Furthermore, Mr Yim submitted that a starting point of I
3 weeks for the common assault charges, a starting point of 6 weeks for the
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criminal damage charges and a starting point of 3 months for AOABH
K charges would be appropriate. K
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30. It was submitted that Charges 5 & 6 arose out of the same
M incident; and Charges 7 to 9 arose out of another incident; therefore the M
sentences on Charges 5 & 6 should be allowed to run concurrently and that
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similarly, the sentences on Charges 7 to 9 should also be allowed to run
O concurrently. After being reminded that the offence under Charge 9 O
happened on a later date, Mr Yim conceded that it should be dealt with
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separately.
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31. Mr Yim asked the court to take into account the totality
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principle and impose a sentence that would allow Mr Nip an immediate
S release. S
T T
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A A
B B
32. In the end, Mr Yim fell back to reality and suggested a starting
C point of 3 years’ imprisonment for Charge 7. C
D D
33. After explaining the psychologist’s report to Mr Nip and upon
E taking further instructions, Mr Yim submitted that Mr Nip is absolutely E
normal and promises that he will not re-offend.
F F
G Sentence G
H H
34. At my request and without objection from the Defence, the
I prosecution submitted a photo album mainly to show the injuries and the I
shape and size of the subject hammer.
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K 35. The offences spanned from August 2016 to June 2020, a K
period of almost 4 years.
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M 36. As was correctly recognized by Mr Yim for Mr Nip, the most M
serious offence is that of wounding with intent.
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O 37. In Hung Kar Chun, supra, it was held that while there were O
no sentencing guidelines for that offence, sentences should range between
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3 and 12 years’ imprisonment. In my judgment, as the facts of each case
Q and the circumstances of each defendant can vary so much from the next, Q
it is not helpful to compare the sentences imposed in different cases.
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S 38. The hammer used for the attack under Charge 7 is one-foot S
long and belongs to the category of a medium-size home-use hammer.
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Fortunately, the injuries sustained were not too serious. However, one
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A A
B B
cannot ignore the fact the one of the blows that landed on the victim’s head
C was thrown from behind. This is cowardly, evil and insidious. Because of C
the stealthiness of the attack, there is no direct evidence of what weapon
D D
was used. Giving the benefit of the doubt to Mr Nip, I accept that it could
E be a fist. E
F F
39. Taking all of his conduct as a whole in this episode of
G wounding with intent to cause grievous bodily harm, I am of the view a G
basic starting point of less than 3 years and 3 months would be unrealistic.
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Because this attack on the victim was the 6th in a series of attacks over a
I period of almost 4 years, I add a period of 3 months as reflection of this I
aggravating factor. For this reason, I adopt 3 years and 6 months as the
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final starting point for Charge 7.
K K
40. As for Charge 8, this is the second time (the first was under
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Charge 6) that Mr Nip destroyed the victim’s glasses. This is a particularly
M heinous example of damaging another person’s property because it caused M
a lot of inconvenience to the user not only on the day itself but also for a
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considerable period thereafter when a new pair of glasses was being
O prepared. For the aggravating factor of the repeated commission of the O
same offence, I shall add 6 days to the basic starting point of 42 days
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resulting in a 48 days’ final starting point.
Q Q
41. For Charges 1 and 2, I will accede to Mr Yim’s suggestion of
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a starting point of 21 days and 3 months respectively.
S S
42. For Charge 3, because of the repeated commission of the same
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offence as that under Charge 1, I will adopt a starting point of 24 days.
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A A
B B
C 43. For Charge 4, because of the repeated commission of the same C
offence as that under Charge 2, I will adopt a starting point of 3 months
D D
and 15 days.
E E
44. For Charge 5, because of the repeated commission of the same
F F
offence as those under Charges 1 and 3, I will adopt a starting point of
G 27 days. G
H H
45. For Charge 6, I will accede to Mr Yim’s suggestion of a
I starting point of 42 days. I
J J
46. For Charge 9, the maximum penalty is 3 years’ imprisonment.
K The hammer possessed is in no way a light weapon and could cause serious K
injury even death in some cases if used on the head. Giving weight to the
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mitigating explanation that it was only to be used as a defensive weapon, I
M shall adopt a lower starting point of 9 months’ imprisonment. M
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47. Save for the offences subject of Charges 5 and 6 (as a pair)
O and Charges 7 and 8 (as another pair) for which separately concurrent O
sentences could be considered, the other offences all occurred on different
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dates and at different places and therefore consecutive sentences are called
Q for subject only to totality. Q
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48. Given that the whole course of conduct spanned almost
S 4 years resulting in the victim having to undergo a continuous period of S
frightful ordeal for the same period, I consider a global starting point of
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4 years to be fully justified. I am satisfied this will give Mr Nip sufficient
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A A
B B
deterrence against his re-offending given that the only time that he was
C imprisoned previously was for a term of 21 days in 2010. C
D D
49. Mr Nip pleaded guilty in time for which he shall be entitled to
E a 1/3 discount. I can see no other mitigating factors of sufficient weight to E
warrant further discounts.
F F
G 50. I will impose the following individual sentences on Mr Nip. G
H H
(Mr Nip, please stand)
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51. For Charge 1, the prison term is 14 days.
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K 52. For Charge 2, the prison term is 2 months. K
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53. For Charge 3, the prison term is 16 days.
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54. For Charge 4, the prison term is 2 months and 10 days.
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O 55. For Charge 5, the prison term is 18 days. O
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56. For Charge 6, the prison term is 28 days.
Q Q
57. For Charge 7, the prison term is 2 years and 4 months.
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S 58. For Charge 8, the prison term is 32 days. S
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59. For Charge 9, the prison term is 6 months.
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A A
B B
C 60. I order that the sentences on Charges 5 & 6 are to run C
concurrently as Group A. I order that the sentences on Charges 7 & 8 are
D D
to run concurrently as Group B.
E E
61. After considering totality, I order that the sentences on
F F
Charges 1, 2, 3, 4, 9 and on Group A are to be served concurrently among
G themselves but 4 months of this set of concurrent sentences (ie 6 months) G
are to be served consecutively to the sentence on Group B (ie 28 months),
H H
resulting in an aggregate sentence of 32 months’ imprisonment.
I I
J J
K K
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( Isaac Tam )
District Judge
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