HKSAR v. SIU LOK MAN AND OTHERS

DCCC 157/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 157 OF 2017

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REASONS FOR SENTENCE

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1.  There are three defendants in this case. D1 to D3 are jointly charged with one count of “Conspiracy to wound with intent” (Charge 1), contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212, and sections 159A and 159C of the Crimes Ordinance, Cap 200. D2 is further charged with one count of “Possession of an offensive weapon in a public place” (Charge 2), contrary to section 33(1) of the Public Order Ordinance, Cap 245. D1 is further charged with two counts of “Possession of offensive weapon in a public place (Charge 3 and Charge 6), one count of “Driving an unlicensed vehicle” (Charge 4), contrary to section 52(1)(a) and (10)(a) of the Road Traffic Ordinance, Cap 374 and one count of “Using a motor vehicle without third party insurance (Charge 5), contrary to section 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272.

2.  After D1 pleaded guilty to Charges 1, 3 to 6 and D2 pleaded guilty to Charges 1 and 2, the prosecution offered no evidence against D3 on Charge 1 and therefore it was left in court file.  Now the court deals with the sentence of D1 and D2.

Summary of facts

3.  At all material times, Mr Cheng King Cheung (“PW1”) worked as a salesperson at Sasa Cosmetic Shop at 2/F, Tai Po Mega Mall, On Pong Road, Tai Po, the New Territories, Hong Kong (“the Mall”).  In early September 2016, PW1 had a dispute with a man in a bar in Tai Po. He did not have any other dispute with anyone else.

4.  On 15 November 2016 at around 8:45 pm, D1 drove a private vehicle bearing registration plate TX510 (“V1”) to the Mall and stopped at the entrance.  D2 and another man, both wearing surgical masks, alighted V1 and walked into the Mall.  Police officers intercepted them on the 2^nd Floor of the Mall (Charge 1).  Upon search on D2, a beef knife with a blade of 35 cm and its handle wrapped in bandage was found (Charge 2).  D2 was arrested.

5.  At around the same time, D1 was also intercepted by police officers when he was still seated in the driver’s seat of V1 with its engine running.  Upon search on V1, the police found three balaclavas, two pairs of gloves, a beef knife and two sheathes (Charge 3).  D1 was arrested.

6.  Under caution, D1 admitted that he was driving a few “brothers” to the scene to chop a man who had defected to another triad faction.  Upon further enquiry, D1 said he had driven others to chop PW1 who was working at “Sasa” and he was only responsible for driving.  He also said his own car bearing registration mark TD7457 (“V2”) was parked at Tai Po Industrial Estate.

7.  Police later located V2 at Tai Po Industrial Estate.  Upon search on V2, a knife with a blade of 38 cm with its handle wrapped in bandage was found inside a nylon bag placed inside the boot (Charge 6). 

8.  Subsequent investigation revealed that the licence of V1 had expired.  Further V1 did not have in force a policy of insurance in respect of third party risks as required by the Motor Vehicles Insurance (Third Party Risks) Ordinance (Charges 4 and 5).

Mitigation

9.  D1 is 38 years old and married.  He has two young children, aged 4 and 5.  His wife, aged 29, is a housewife.  He lives with his parents, his wife and two children.  He received secondary education and has been working as a technician for some years earning about HK$20,000 per month.  He is the sole breadwinner of the family.  D1 has three previous convictions and all of them are related to selling infringing copyright goods.

10.  D2 is 27 years of age and is single.  He lives with his 80-year-old grandmother in a public housing unit.  He received Form 4 education and used to work as assistant cook and air conditioning technician.  Before he was arrested, he was a construction site worker earning about HK$22,000 per month.  D2 has four previous convictions and all of them are drug-related. 

11.  Defence submitted that both D1 and D2 are very remorseful now.  They both pleaded guilty to the charges.  Though they both have some previous convictions but none of them are related to violence.  In D1’s case, his last conviction was 19 years ago.  It was submitted that there is no evidence to show that the defendants intended to cause life-threatening harm to the victim and in fact no one was injured in this case.  All in all, defence urged the court to impose a lenient sentence on both defendants.  As all the charges were arising from the same incident, defence asked the court to consider the totality principle and to order the sentence to be served concurrently.

Sentencing consideration

12.  D1 and D2 are jointly charged with Charge 1 and it is the most serious charge in this case.  Even if the attack was not carried out and no harm was done to anyone, the offence remains a very serious one and custodial sentence of considerable length is definitely the only option.  Concerning the other charges, as submitted by the defence, I accept that they are just part and parcel to Charge 1. 

13.  Time and again, the Court of Appeal has indicated that there is no sentencing tariff for the offence of wounding with intent.  Each case must be approached on its own facts.  In this case, I am of the view that the aggravating features include:-

(1) It was a pre-meditated attack;

(2) The attack involved more than one perpetrator;

(3) Weapons would have been used if the attack was carried out.

14.  If the attack was actually carried out and serious harm was caused to the victim, this court is of the view that the starting point should be at least 4 years’ imprisonment and it will be adjusted upwards depending on the seriousness of the injuries sustained by the victim.  However, in this case, the attack was stopped by the police before it was carried out.  Though the circumstances are still serious, the sentence should reflect the fact that no one was injured in the incident.

15.  Considered all the circumstances, the appropriate starting point for Charge 1 should be 3 years’ imprisonment.  D1 and D2 both pleaded guilty to the charge and I give them one-third discount.  Therefore, for Charge 1, both defendants are sentenced to 2 years’ imprisonment.  For Charge 2 against D2, Charges 3 and 6 against D1, I adopt 12 months’ imprisonment as the starting point.  They pleaded guilty to these charges and are entitled to have one-third discount. Therefore, for Charge 2, D2 is sentenced to 8 months’ imprisonment.  For Charges 3 and 6, D1 is sentenced to 8 months’ imprisonment.   

16.  After considered the totality principle, for D1, I order the sentence of Charges 1, 3 and 6 to be served wholly concurrently.  The total sentence is 2 years’ imprisonment.  For D2, I also order the sentence of Charges 1 and 2 to be served concurrently.  The total sentence for D2 is also 2 years’ imprisonment.

17.  For the remaining Charge 4, D1 is fined $3,000.  For Charge 5, D1 is fined $5,000 and disqualified from holding and obtaining any driving licence for a period of 12 months.  I direct under section 69A(2) of the Road Traffic Ordinance that such disqualification period is not to start to run until his previous disqualification order is expired.  D1 is given 6 months to pay the total fine of $8,000.  He is also warned that driving while disqualified is a serious offence and if convicted, very likely the sentence will be a term of imprisonment.