HKSAR v. LAM KAM ON AND ANOTHER

DCCC1175/2010 & 152/2011
(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1175 OF 2010 & 152 OF 2011

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Reasons for Sentence

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The Charges

1.  The 1st Defendant pleaded guilty to one charge of “wounding with intent” (the 1^st charge), contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212, which was laid jointly against him and the 2nd Defendant. He also pleaded guilty to one charge of theft (the 3^rd charge), contrary to section 9 of the Theft Ordinance, Cap. 210.

2.  The 2nd Defendant pleaded guilty to the 1^st charge of “wounding with intent” and to another charge of “wounding with intent” (the 2^nd charge), which was laid against him alone.

3.  Upon the prosecution’s application, two other charges of “claiming to be a member of a triad society” (the 4^th and the 5^th charges) laid against the 1st Defendant and the 2nd Defendant respectively were ordered to be left on the court file and not to be proceeded with without the leave of this court or the Court of Appeal.

The Facts

4.  In the night of 7 January 2010, while TSAI Chun-chung (“TSAI”) was playing mahjong with some friends in the premises rented by YANG Zhi-yang (“YANG”), the 1st Defendant, the 2nd Defendant and three other males went to the premises. Each of the Defendants had a baton with him at the time. When YANG opened the door, they rushed into the living room. There is no dispute that both the 1st Defendant and the 2nd Defendant knew TSAI and YANG.

5.  Upon entry, one of the three unknown males blocked YANG’s way. After a short exchange of words, the 1st Defendant suddenly hit TSAI’s left ear with the baton. TSAI fell onto the ground. The 2nd Defendant then grabbed TSAI’s neck and assaulted TSAI’s shoulder with his baton. Afterwards, both the 1st Defendant and the 2nd Defendant assaulted TSAI continuously for a few more minutes. In the meantime, the three unknown males stood nearby. This is the subject matter of the 1^st charge.

6.  Around that time, YANG tried to move to the rear of the living room but the 2nd Defendant suddenly rushed to YANG and assaulted YANG’s left ear, left shoulder and both hands with the baton for about a minute. Afterwards, the 2nd Defendant then dragged YANG to the centre of the living room and assaulted YANG’s left shoulder again. This is the subject matter of the 2^nd charge.

7.  As a result of the assaults, TSAI was found to have sustained the following injuries :

(a)  two hematomas situated at the occipital scalp, one was 3cm in diameter while the other was about 2.5 cm. A laceration was seen near the smaller hematoma;

(b)  a bleeding 3cm long laceration found at the superior aspect of the junction of the left ear pinna and the head;

(c)  abrasion at the front part of the right elbow;

(d)  another abrasion on the left scapular region and there were also multiple red marks, ranging from 7 to 10 cm in length;

(e)  tender red mark at the middle third area of the left forearm;

(f)  abrasion and tender swellings at various regions of the right hand and fingers; and

(g)  comminuted fracture of the terminal phalanx of the right middle finger.

8.  Insofar as YANG is concerned, he was found to have sustained the following injuries :

(a)  swelling and abrasion behind the left ear;

(b)  swelling over the left shoulder;

(c)  a laceration wound over the right hand, with bruising and swelling around the wound;

(d)  swelling and tenderness over the left hand, with limited range of movement of the left little finger;

(e)  fracture of the middle phalanx of the right little finger.

9.  After TSAI was assaulted, the 1st Defendant then took away HK$2,000 cash from TSAI’s mahjong table drawer. This is the subject matter of the 3^rd charge.

10.  Both the 1st Defendant and the 2nd Defendant were put on the Police Wanted List and were arrested in May and October 2010 respectively.

Mitigation – the 1st Defendant

11.  The 1st Defendant is now aged 45, married with 5 children, the eldest being 22 years of age and the youngest being only 5 years of age. It was said that the 1st Defendant is the sole bread-winner of the family.

12.  The 1st Defendant has been before the court on 8 previous occasions with 13 convictions, including one “robbery”, one “attempted burglary”, one “theft from vehicle”, one “theft”, one “AOABH” and one “resisting a police officer”. He was last before the court in January 2005.

13.  The 1st Defendant was educated up to Primary 4 and had worked as a transportation worker. At the time of his arrest, he was unemployed.

14.  In mitigation, it was said that the latest violence-related conviction of the 1st Defendant was in 2000, and thereafter, the 1st Defendant, although still had trouble with the law, has not got any similar conviction.

15.  Mr. Lau acting for the 1st Defendant told the court that a few days before this incident, the 1st Defendant went to play mahjong in the premises concerned. He, however, considered himself to have been cheated and a heated argument ensued between the 1st Defendant and TSAI. Feeling humiliated, the 1st Defendant went to the premises on the day in question with the intention of settling the matter. The 1st Defendant, however, is now remorseful as he understands that he cannot take the law into his own hands.

16.  Insofar as the theft charge is concerned, Mr. Lau informed the court that the 1st Defendant is willing to repay the money to TSAI.

Mitigation – the 2nd Defendant

17.  The 2nd Defendant is now aged 43. He is living with his girl-friend and he has a 12-year-old son who is being taken care of in an institution after he has divorced with his wife. The 2nd Defendant was educated up to Form 1 level. At the time of his arrest, he had been working as a bar-tender for the same employer for 8 years, earning about HK$8,500 per month.

18.  According to the 2nd Defendant’s criminal conviction records, he is one who is used to employing violence on others. He has been before the court on 10 occasions with 20 convictions which are mostly related to the use of violence. These included “fighting in a public place”, “common assault”, “AOABH”, “resisting and obstructing police officers”, and “possession of offensive weapon in a public place”. He also had burglary and some drug-related convictions.

19.  The 2nd Defendant’s latest convictions were in respect of “wounding 19” and “common assault”. At present, he is still serving the 9-month term imposed on 16 February 2011. Mr. Tam acting for the 2nd Defendant told the court that although the 2nd Defendant committed these latest offences while he was on bail in relation to the present offence, the victim in those charges was his girl-friend. It was said that the reason why the 2nd Defendant committed those offences was because he had an argument with his girl-friend about the present incident and at the heat of the argument, the assaults took place.

20.  Two letters were given to the court. One was written by the 2nd Defendant’s son and the other was written by the Assistant Warden of the Mark Memorial Home of the Hong Kong Student Aid Society. The 2nd Defendant was described as a caring father who paid regular visits to his son and who cared about his son’s development. At the same time, the 2nd Defendant’s son also begged for leniency on his behalf.

21.  In mitigation, Mr. Tam told the court that the 2nd Defendant committed the present offences for the same reason mentioned by Mr. Lau for the 1st Defendant. He, however, accepted that on the day in question, the 2nd Defendant agreed to go to the premises together with the 1st Defendant and three other males.

22.  Mr. Tam further told the court that the 2nd Defendant has been diagnosed to have a lung tumour, which is very likely to be lung cancer. The 2nd Defendant will, therefore, require medical treatment very soon.

Sentencing Considerations

23.  There is no tariff set for the offence of “wounding with intent” for the facts in each case may vary greatly.

24.  In the present case, the two Defendants, went with three other males, to the premises at the time. Both the 1st Defendant and the 2nd Defendant had armed themselves with batons. Clearly, the attack was a pre-planned and deliberate one. In other words, both Defendants went to the premises well-equipped and with a “support team”.

25.  This morning, I was told that both victims have not suffered any permanent injuries but it remains a fact that they were attacked on their ears, which is a vulnerable part of the body, with batons at the time. It is also clear that at the time of the assaults, both victims were unarmed and rather defenseless. Yet, both Defendants continued to assault TSAI for a few more minutes after he had been hit with the baton. This was a vicious attack.

26.  Although the 2nd Defendant acted alone when he mounted the attack on YANG. Yet, I make the same observations that the 2nd Defendant had with him a baton at the time and he used that to hit YANG’s ear, shoulder and hands. The assault lasted for about 1 minute. The 2nd Defendant was not satisfied and he then dragged YANG to the centre of the living room and assaulted YANG further.

The Sentence – the 1^st Charge

27.  Having considered the facts of this case and the aggravating factors mentioned above, I am going to adopt a starting point of 3 years for the 1^st charge. Both Defendants pleaded guilty and they will be given a reduction of one-third for their pleas. Other than that, I do not see any other mitigating factors which would warrant any further reduction in sentence. Each of the Defendants is therefore to serve a term of 2 years for this charge.

28.  In Yip Kai-foon v HKSAR (2003) 3 HKCFAR 31, 35, LI CJ said,

“Under the guidelines and principles evolved by the courts, medical grounds will seldom, if ever, be a basis for reducing the sentence for crimes of gravity.”

29.  In this case, although it was said that the 2nd Defendant has a lung tumour, it remains a fact that he was convicted of two “wounding 17” charges and the criminality of these offences cannot, in any way, be described as light. Therefore, I do not consider it appropriate to reduce the sentence simply on the ground of his health. I trust he will receive appropriate treatment while he serves his sentence．

The Sentence – the 2^nd charge

30.  For this charge, I consider a starting point of 2½ years to be appropriate. Again, other than the 2nd Defendant’s plea, I do not see any other factors which would warrant a further reduction in sentence. The 2nd Defendant is therefore to serve a term of 20 months for this charge.

The Sentence – the 3^rd charge

31.  I am going to adopt a starting point of 3½ months for this charge. The 1st Defendant has pleaded guilty and has indicated that he is willing to compensate TSAI. I am therefore going to reduce the term to one of 2 months. In doing so, I am aware that it is important for the court to avoid creating the impression that the accused is allowed to buy himself out of the consequences of his crime but, in the present case, I take the indication to repay TSAI as showing the 1st Defendant’s genuine remorse.

32.  In respect of this charge, I am also going to make a compensation order for the 1st Defendant to pay HK$2,000 to TSAI under section 73 of the Criminal Procedure Ordinance, Cap. 221.

The Totality Principle

33.  These are separate offences and, in principle, the sentences should be served consecutively.

34.  For the 1st Defendant, having considered the totality principle, I do not regard 2 years and 2 months to be excessive given the facts of this case, I therefore order that the two terms be served wholly consecutively.

35.  For the 2nd Defendant, 2 years and 20 months will give a total term of 44 months. This, in my view, is too excessive a totality in terms of the facts of this case. I am therefore going to order 10 months of the 20-month term in respect of the 2^nd charge are to run wholly concurrently with the 2-year term in respect of the 1^st charge, resulting in a total term of 34 months for these 2 charges.

36.  As the 2nd Defendant is also serving a term of 9 months starting from February 2011, I consider that the correct totality could be achieved by ordering that only 32 months of the 34-month term now being imposed are to be served wholly consecutively to his existing term of 9-month.