HKSAR v. LING CHI YIP AND ANOTHER

DCCC109/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 109 OF 2012

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Reasons for Sentence

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The charges and pleas

1.  Ling Chi-yip (“D1”), and Wong Chi-wa (“D2”), pleaded guilty to one count of “conspiracy to wound with intent”, contrary to section 17A of the Offences Against the Person Ordinance, Cap. 212, and sections 159A and 159C of the Crimes Ordinance, Cap. 200, (Charge 1).

2.  D1 also pleads guilty to one count of possession of imitation firearms, contrary to section 20(1) of the Firearms and Ammunition Ordinance, Cap. 238, (Charge 2).

3.  Charge 1 concerns a conspiracy formed in Hong Kong in November 2011 by D1, D2, and a male known as “Tai Keung” to unlawfully and maliciously wound Sin Kwok-lam with an intent to do him grievous bodily harm. 

4.  Charge 2 concerns three air pistols found in the bathroom of D1 on 30 November 2011. 

The Facts

Charge 2 (against D1 only)

5.  In the afternoon of 30 November 2011, the police executed a search warrant at D1’s flat at Tai Wo Estate.  D1, who was present inside the flat, led the officers to his room where he retrieved three imitation firearms, namely three air guns contained in a bag. 

6.  The appearance of the three fake airguns brings them within the definition of ‘imitation firearms’ under the Firearms and Ammunition Ordinance, Cap. 238.

7.  D1 was arrested.  He stated under caution that the air guns were fakes.  He said he had a photo of the intended victim in his wallet.  The fake guns were his and they had nothing to do with his family members found in the flat. 

8.  The police found from the wallet of D1 a photo of Sin Kwok-lam, the target victim of the Conspiracy to Wound with Intent charge.  Together with the photo was a piece of paper on which an address in Kwun Tong was written.

Charge 2 (against D1 and D2)

9.  Investigation revealed that D2 was the person who asked D1 to carry out a knife attack on the victim.  The police arrested D2 on 1 December 2011.

10.  The police conducted three video-recorded interviews with D1 between 30 November 2011 and 1 December 2011.  D1 admitted, inter alia, the following:

(1) As his friend “Chi Wa”, ie D2, whom he knew for about six months then, was aware that he was short of money. D2 proposed a plan to D1 when they met at Golden Era Plaza in Mong Kok sometime in November;

(2) D2 gave him a photo attached with a piece of paper with an address, and asked him to find someone to chop the younger man (i.e. the victim) depicted in the photo one to two times with a knife; D1 agreed to carry out the attack; D1 was further instructed that the attack could be carried out at any time, preferably as soon as possible;

(3) When D1 was ready to carry out that attack, he should call D2 who would tell him about the victim’s whereabouts;

(4) D1 would be rewarded a sum of $30,000 when the job was completed;

(5) D1 did not know the name or occupation of the victim;

(6) However, as D1 saw the victim appeared with the son of a famous Kung Fu master in the photo, D1 took the view that the victim must be good at Kung Fu. So he borrowed three faked airguns from his friend;

(7) D1 was shown the photo and the piece of paper on which the Kwun Tong address was written that were found from D1’s wallet; he confirmed they were given to him by D2 and D1 was instructed to chop the younger one depicted in the photo, ie the victim.

(8) D1 identified the three imitation firearms seized from the flat.

(9) D1 was shown the two mobile phones seized from him at the time of his arrest; D1 identified the one that he used to contact D2; D1 also retrieved the phone number of D2 from his phone.

11.  On 1 December 2011 the police conducted three video recorded interviews with D2, during which he admitted, inter alia, the following:

(1) In the evening of 24 November 2011, his friend “Tai Keung” passed him a photo and a piece of paper and asked him to carry out a knife attack on the younger man depicted in the photo; D2 would be rewarded $50,000 after the job was completed; he was told that the victim visited the address stated on the paper everyday;

(2) He met his friend “Ah B”, ie D1, at Golden Era Plaza; he passed the photo and the paper to D1 and asked D1 to carry out the attack at a reward of $35,000;

(3) He did not specify the date of carrying out the attack; however, he had given $5,000 to D1 first and told D1 that the remaining $30,000 will be paid after the job was completed;

(4) Only D1, D2 and “Tai Keung” knew about the plan of the attack;

(5) D2 was shown the photo and the piece of paper found from D1’s wallet and he confirmed they were given to him by “Tai Keung” and he passed them to D1.

12.  Mr Sin Kwok-lam confirmed that he is the person depicted in the photo seized from D1.  The Kwun Tong address on the paper was his office address which he attended every day. 

13.  Calls records of mobile phones seized from D1 and D2 showed that various calls were made between D1 and D2 between 24 November 2011 and 29 November 2011.   

The Criminal Record and Antecedent Statement

D1

14.  The Criminal Record Summary of D1 reveals that he has 21 conviction records with no previous similar, the previous convictions included “Theft”, “Burglary”, “Breach of Probation Order”, “Escaping From Legal Custody”, “Robbery”, “Attempted Robbery”, “Possession of Dangerous Drugs”, “Resisting a Police Officer”, “Possession of Instrument Fit for Unlawful Purpose” and “Offering/Exposing for Sale Infringing Copies of Copyright Works”, recorded between 1987 and 2009. 

15.  D1 is now 38 years old.  He had received Form 3 education in Hong Kong.  He worked as a delivery worker at a time of his arrest.  A divorcee, he resided with his parents and siblings at Tai Wo Estate. 

D2

16.  The Criminal Record Summary of D2 shows that he has previous convictions for “Robbery” in 1987 and “Possession of Dangerous Drugs in 1999.

17.  D2 is now 41 years of age.  He had only received Form 1 education.  He was unemployed at the time of his arrest and he depended upon public assistance.  He is single and lived alone at a flat in Mongkok.   

Mitigation

D1

18.  Mr Fenton primarily submits that:

(1) D1’s guilty pleas to Charge 1 and 2 deserve the usual full one-third reduction;

(2) For Charge 1, after D1 had joined the knife attack agreement; he changed his mind subsequently. Although in law D1 is still guilty of the offence; his pulling out from the conspiracy is a strong mitigating factor;

(3) D1 intended to use the imitation firearms to scare the victim before chopping him with a knife. Charge 2 is closely connected to Charge 1 that its sentence should run partly, if not wholly concurrent with the sentence for Charge 1.

19.  In the course of his submissions, Mr Fenton draws my attention to certain answers given by D1 in one of his video recorded interviews.  Mr Fenton also draws my attention to the case DCCC325, 326 and 340 of 2010. The defendant in that case pleaded guilty to various charges, including two counts of Conspiracy to Wound with Intent”.

D2

20.  Mr Hemmings tells me in mitigation that there is not much he can say about the offence itself.  D2 allowed himself to be seduced by money and acted as a middleman.  D2 is sorry that he involved himself in the conspiracy but he is relieved to know that the knife attack was not carried out.

21.  Mr Hemmings draws my attention to the starting point taken by Deputy Judge Dufton in DCCC325, 326 and 340 of 2010.  He submits that the starting point in this case should not exceed 4 years.  The conspiracy was unsophisticated and not carried out.

22.  The previous convictions for robbery took place when D2 was only 16 and he is now 41.  D2 has a supportive family, something that he failed to realise until after he was remanded in custody.  D2 regrets that he cannot take care of his mother now.

23.  Mr Hemmings asked me to give D2 full discount for his guilty plea.  As soon as D2 was arrested, he cooperated with the police and confessed in similar terms as D1 did.

24.  D2 did not instigate the attack plan; he was approached by Tai Keung. He passed the photo to D1.  It was not in D2’s contemplation that anything other than a knife would be used in the attack.      

Discussion

Charge 1

25.  The defendant in DCCC325, 326 and 340 of 2010 pleaded guilty to various charges arising from an undercover operation, where a police officer infiltrated a triad society.  The operation turned overt in September 2009.  The defendant, in that case, had a clear record prior to these offences.

26.  The defendant in that case pleaded guilty to two counts of conspiracy to wound with intent.  Mr Fenton and Mr Hemmings draw my attention to the conspiracy to wound with intent (Charge 3) in DCCC340/2010.  The learned judge summarises the facts pertaining to the charge in paragraphs 8 for the Reasons for Sentence, which reads:

“8. On 6 July 2009 the defendant and PW1 were asked by D1 to attack a drug trafficker who had been very rude to him. They met at D1’s home on 8 July when they planned to attack the male with knives, but to chop him on his body and limbs only, but not on or above the neck so that the blows will not be fatal. On 9 July the wife of D1 took the defendant and PW1 to the building where the male resided. The plan to attack the male was, however, postponed, Charge 3.”

27.  In paragraph 12, the learned judge explains why he thinks a starting point of 4 years should be adopted.

“12. Had the planned attack been carried out resulting in chop wounds to the body a sentence of no less than five years’ imprisonment would have been appropriate and may well have been substantially more depending on the severity of the injuries. Some steps were taken in preparation for an attack by viewing the building where the male resided. Whilst the attack was not carried out, this was still contemplated having only been postponed. In the circumstances I take 4 years’ imprisonment as my starting point.”

28.  Mr Fenton submits that D1 in fact had withdrawn from the knife attack plan that he once agreed to carry out.

29.  He draws my attention to various answers given by D1 in this video recorded interview.  In short, D1 says D2 approached him on 4 or 5 November 2011 and asked him to attack the victim with a knife, D1 was asked to carry out the attack the following day or as soon as possible.  D1 hesitated.  He did not answer D2’s calls.  He had no confidence and did not want to do it.  D1 obtained the guns as he thought he could scare the victim with the guns.  At the end D1 thought the knife attack plan was not going to work, the guns were not really useful and he avoided D2’s calls. 

30.  Mr Fenton submits by the end of November 2011, D1 was either avoiding D2’s calls or that he was delaying the situation indefinitely.  It was quite unlikely that the chopping would take place.  Hence a lower starting point should be taken.

31.  In the case cited by Mr Fenton, Deputy Judge Dufton took 4 years as the starting point because the attack plan was only postponed.  But in the presence case, D1 was thinking it was highly unlikely that he would carry out the attack. 

32.  Mr Fenton submits the starting point in the present case should be less than 4 years.  He submits a starting point of 3 years is appropriate. 

33.  Mr Fenton submits as soon as D1 was arrested, he confessed to the police.  He gave a cautioned interview, giving full details of D2’s particulars.  It adds credence to D1’s case that he was not going to carry out the attack. 

34.  Ms. Ko for the prosecution tells me that D1 in his second video recorded interview clarified the date he was approached by D2.  D1 said it was about 10 days before his arrest that he was approached by D2.

35.  There are some similarities between the facts in the present case and the facts in DCCC340/2010.  Both conspiracies concerned knife attack plan on targeted victims.  There was some degree of planning in the present case, as in DCCC340.  The photo of the targeted victim and his office address were provided to D1.  D2 acted as a middleman between D1 and “Tai Keung”.  As in DCCC340, it was contemplated that the attack on Mr Sin would be carried out by more than one attacker.

36.  In the present case, I take the view, as Deputy Judge Dufton did in DCCC340/2010, that had the planned attack on Mr Sin been carried resulting in chop wounds to the body a sentence of at least 5 years’ imprisonment would have been appropriate and “may have been substantially more depending on the severity of the injuries”. 

37.  Given that the attack was not carried out, a lower starting point of 4 years' imprisonment should be taken. 

38.  In the case of D1, though he had told the police in his video recorded interview that he had no confidence, he did not want to do the job and avoided D2’s calls.  D1 also told the police, at counter 32B, that he had not yet found someone who would carry out the attack with him. At 138B, D1 told the police he thought at first it sounded very simple to get one or two persons.  At 148B, D1 said he kept hesitating after he learnt that the targeted victim was probably good at Kung Fu.  D1 went on to explain he then thought of getting some faked guns to scare the victim so that D1 could chop him successfully.  At 265B, D1 said it had been one week or so between the time D2 asked D1 to wound the targeted victim and the time D1 obtained the fake guns from his friend.  He asked for and obtained from his friend “Chi Wa” the fake guns on the Sunday before his arrest.  D1 was arrested in the afternoon of 30 November 2011; he obtained the fake guns in the evening on 27 November 2011 (counters 167A to 186B, 266C and 267B). 

39.  It is obvious from the above that, after D1 had agreed to check the victim for money, he tried to look for one or two partners, but in vain.  He then contemplated using some fake guns to scare the victim before the chopping; he asked for and obtained some fake guns on the evening on 27 November 2011.  He was arrested in the afternoon of 30 November 2011.  In addition, paragraph 9 of the Summary of Facts shows that various phone calls were made between D1 and D2 between 24 and 29 November 2011. 

40.  I do not believe D1 had pulled out from the attack plan or he had no intention to carry out the attack on the victim.  D1 had been trying to look for some helpers, though in vain.  He obtained some faked guns for the purpose of carrying out the attack three days before his arrest.  I do not accept his submissions that D1 had pulled out from the conspiracy at the time of his arrest, and I would not allow D1 any further reduction for his claim that he had withdrawn from the conspiracy.  The knife attack was still being contemplated, as evidenced by D1’s obtaining the imitation firearms on 27 November 2011.  The knife attack plan was in a stalemate only because: (i) D1 was unable to recruit any helper; and (ii) D1 hesitated and lacked confidence.

41.  In the case of D2, it is fortuitous that the attack was not carried out.  D2 played a role of the middleman, and he did that for money.  In fairness to D2, it was not in his contemplation that anything other than a knife will be used in the attack. 

42.  On the facts before me, for Charge 1, I would adopt a starting point of 4 years' imprisonment. 

43.  D1 and D2 are both entitled to one-third reduction for their guilty pleas. 

44.  There is no other mitigating factor apart from the guilty pleas.

45.  For the reasons given, on Charge 1, I sentence D1 and D2 each to 32 months' imprisonment. 

Charge 2

46.  The maximum sentence for the offence of possession of imitation firearms is 2 years' imprisonment.

47.  In sentencing D1 for Charge 1, I have not taken into account the intended use of the imitation firearms.  It is obvious that the use of the imitation firearms was something contemplated by D1 alone.

48.  I have seen the three imitation firearms.  They are all hand pistols.  The Smith & Wesson revolver and the Beretta pistol are both very realistic, though the third silver-coloured pistol looks quite like a toy gun.  These imitation firearms, if produced to the targeted victim during the knife attack, could easily put the victim in fear. 

49.  Bearing in mind the intended use of these imitation firearms, ie that D1 intended to use them to scare the victim during the knife attack, in my judgment, a starting point of 18 months' imprisonment is appropriate. 

50.  D1 is entitled to one-third reduction for his guilty plea. 

51.  For the reasons given, on Charge 2, I sentence D1 to 12 months' imprisonment. 

Totality for D1

52.  D1’s possession of the imitation firearms was closely related to the knife attack plan, which for the reasons I identified, was not carried out.  The sentence for Charge 2 should run partly consecutive to the sentence for Charge 1.  In my final assessment a total sentence of 3 years should adequately reflect D1’s overall culpability for both offences.  To achieve that end I order 4 months of the sentence for Charge 2 shall run consecutively to D1’s sentence for Charge 1.  D1 is sentenced to a total term of three years' imprisonment.