Criminal sentencing - wounding with intent - defendant attacked friend by biting off part of his ear necessitating reconstructive surgery - victim suffered emotional trauma as result - offence not premeditated, committed under influence of anti-depressants, and entirely out of character - defendant of positive good character - lapse of two years from commission of offence to verdict by court - appropriate sentence
On 16 April 2018, D was convicted of wounding with intent to do grievous bodily harm. On 16 April 2016, D, his wife and a friend, V, attended a birthday party. When V left, D met him in a staircase and suddenly turned abusive, uttering a homophobic slur, then grabbed V's shirt and bit his ear. D spat out a piece of flesh, picked it up and ran up the stairs. V went to hospital. Approximately one third of the top of his ear was missing and he later underwent surgery to reconstruct his ear, which was sewn to the side of his head. D was of clear record. In mitigation, he submitted that at the time of the offence, he was on prescription antidepressant (Paroxetine) and anxiolytic (Alprazolam) drugs, of which aggressive and violent behaviour were side effects. According to medical reports prepared by clinical psychologists, on the night concerned, D took both antidepressants and alcohol. D did not like V, because he was manipulative and often took financial advantage of him. In a victim impact statement, V reported that his ear had completely healed and his hearing was intact, but he still needed another operation to separate his ear from the side of his head. Apart from being disfigured, V still had occasional nightmares two years on; he experienced anxiety in close proximity to strangers and avoided crowded places; and he had become a completely different person.
Held, sentencing D to 2 years and 3 months' imprisonment, that:
(1) There were no sentencing guidelines for offences of wounding with intent. Factors relevant to determining the gravity of the offence and the culpability of the offender included the extent to which the assault was premeditated; the reasons or motivation underlying the assault; the mental or emotional state of the assailant at the time; whether alcohol or drugs contributed to the assailant's actions; whether the assailant acted alone or as part of a group; the type of weapons employed; the level of force or aggression and the persistence with which the assault was committed; the injuries to the victim and the effect of the assault on the victim and those close to him or her (HKSAR v Chan Chun Tat  6 HKC 225 applied). (See paras.34-35.)
(2) In the United Kingdom, wounding offences involving biting of the ear attracted substantial terms of imprisonment, the use of teeth being equated to using a weapon. While the sentencing guidelines did not apply to Hong Kong, this showed that such offences were treated very seriously (Re A-G's Reference (No 6 of 2015) (Voisey)  2 Cr App R (S) 24 considered). (See para.36.)
(3) The offence did not occur during an argument or dispute. The biting of V's ear was a malicious act preceded by highly abusive language about his sexuality and not as a result of provocation (Re A-G's Reference (No 29 of 2001) (Katrina Styring)  1 Cr App R (S) 60, (DCCC 905/2015,  CHKEC 513) distinguished). (See para.42.)
(4) Given the circumstances of the attack, that part of V's ear was bitten off necessitating reconstructive surgery; the emotional trauma suffered by V; the offence was not premeditated and that D, who had a clear record, acted entirely out of character and was unlikely to reoffend, the proper sentence was 3 years' imprisonment after trial. (See paras.33, 45.)
(5) Taking into account that the doctor who prescribed D's medication did not expect that it might cause aggressive and impulsive behaviour; and a clinical psychologist's opinion that D might be prone to violence especially when taking a psychotropic substance, his taking antidepressants might have contributed to the commission of the crime and warranted a reduction in sentence of 6 months to 2½ years' imprisonment. (See para.60.)
(6) By reason of D's charitable donations and work, he was of positive good character and the sentence was further reduced by 2 months to 2 years and 4 months' imprisonment. (See para.61.)
(7) Delay in bringing an offender to justice was a mitigating factor. Due to various adjournments, the matter had been hanging over D for over 2 years and the sentence was reduced further by 1 month to 2 years and 3 months' imprisonment (HKSAR v Wong Ka Wah(CACC 260/2006,  HKEC 1751), HKSAR v Cheung Suet Ting  6 HKC 249 applied). (See paras.62, 64-65.)
this was a hearing to sentence the defendant for wounding with intent. The facts are set out in the judgment.