HKSAR v. MUI HIU FUNG AND ANOTHER

DCCC 150/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 150 OF 2017

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REASONS FOR SENTENCE

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CHARGES

1.  The defendants pleaded guilty to an offence of wounding with intent, contrary to s 17(a) of the Offences against the Person Ordinance, Cap 212 (charge 1), and an offence of occasioning actual bodily harm, contrary to Common Law and punishable under s 39 of the said Ordinance. 

2.  Both offences took place on 21^st day of November 2016 at the same place.  The victim in charge 1 was Mr Kwong Cheuk Lik (“PW1”) whilst the victim in charge 2 was Mr Ng Kai Long (“PW2”).

FACTS

3.  At the material time, PW1, aged 36, was the owner of a company in Tuen Mun selling cans of liquefied petroleum gas (“LPG”), while PW2, aged 29, was his employee.

4.  At around 5pm on 21 November 2016, PW1 and PW2 delivered LPG to “San Tao Kee Restaurant”, No 18 Yan Oi Tong Circuit, Tuen Mun, New Territories, in Hong Kong (“the Restaurant”).  When they were inside the Restaurant waiting for payment, seven to eight males suddenly rushed into the Restaurant, attacked them with long rods for around one minute and fled.

5.  At this juncture, PC 11427 (“PW4”) and PC 8380 (“PW5”) were on patrol nearby and witnessed four to five of the assailants running out of the Restaurant.  PW4 intercepted the 1^st defendant while PW5 chased after the 2^nd defendant who was holding a white plastic rod and running away.  PW5 finally intercepted the 2^nd defendant at the entrance of Tseung Tau Chung Tsuen. 

6.  PW1 at the scene identified both defendants to be two of the assailants who had attacked him.  He recognised them as he had previously seen them at a “Tai Ping Ching Chiu” event in Tuen Mun a day earlier.

7.  Both of the defendants were arrested.  Under caution, the 2^nd defendant admitted that he had assaulted PW1 as they had a previous dispute.

8.  A video-recorded interview was subsequently conducted with the 1^st defendant, during which he admitted that he was inside the Restaurant at the material time.

9.  PW1 was sent to Tuen Mun Hospital where he was found to suffer from (a) a 2.5cm superficial laceration over his left upper lip; (b) abrasion and swelling over his left forearm; (c) tenderness over his left upper anterior chest wall; and (d) bruising and swelling on his left little finger.

10.  PW2 was also sent to the same hospital where he was found to suffer from (a) tenderness over his nasal bridge and right parietal scalp; (b) a bruise of 1.5cm x 5cm over his left upper back; and (c) a 0.2cm abrasion over the dorsal aspect of his right hand.

11.  An identification parade was conducted, whereby PW2 positively identified the 2^nd defendant to be one of the assailants.

PREVIOUS CRIMINAL CONVICTIONS

12.  The 1^st defendant has two criminal convictions, namely claiming to be a member of a triad society and criminal damage for which he was sentenced to a detention centre on 8 March 2017.

13.  The 2^nd defendant has four criminal convictions, namely claiming to be a member of a triad society, assault occasioning actual bodily harm, and two offences possession of a dangerous drug.  He was sentenced to probation in 2011; to a reformatory school in 2012 and to a drug addiction treatment centre in 2015. 

ANTECEDENT STATEMENT

14.  The antecedent statements of both defendants were read into record.

MITIGATION ON 1 JUNE 2017

The 1^st defendant

15.  On 1 June 2017, Miss Mak, solicitor for the 1^st defendant, said that the at the time of the offence D1 was aged 17 years and 8 months old. He is now 18 years old.  She submitted a letter written by D1.  Miss Mak urged this court to call for a background report, a detention centre report and a training centre report. 

The 2^nd defendant

16.  On the same occasion, Mr Mok, solicitor for the 2^nd defendant, submitted a written mitigation on behalf of D2.  He stated that D2 had been working as a delivery worker from August 2016 up to the date of his arrest for the present offences.  His monthly income was about HK$9,000. 

17.  His last conviction was in 2015 and has just been released from a drug addiction treatment centre.

18.  Mr Mok said that D2 was remorseful and he made confessions under caution.

19.  In respect of the present offence, Mr Mok said that D2 did not use any lethal weapon such as a knife or chopper.  The victims did not suffer permanent bodily harm and they were discharged after medical treatment.

20.  He referred to a number of authorities (please see the bundle) and I have considered them carefully.  

21.  Section 109A(1A) of the Criminal Procedure Ordinance Cap 221 was considered.  It is not mandatory for the court to call for a background report if the offence concerned is an excepted offence.  The offence of wounding with intent ie charge 1 is an excepted offence.  Notwithstanding this, I decided to call for a background report, a detention centre report and a training centre report for both defendants. 

Mitigation on 16 June 2017

22.  This morning, I was told that the defendants agreed to the contents of the reports.  As for D2, the Probation Officer wrote to inform this court that D2 decided not to give his background information and he understood the consequences.  Under this circumstance, the Probation Officer was unable to compile a background report for the court’s consideration.

The 1^st defendant

23.  In further mitigation, Miss Mak said that D1’s father is a delivery worker and his mother is also a worker.  It is rather said for the court to learn that D1’s mother suffered chronic insomnia and depression as a result of the prolonged misbehaviour of D1 and D1’s elder sister.  She committed suicide in 2015 and was saved.  She declined any out-patient psychiatric treatment.

24.  Both D1 and his elder sister did not have adequate parental guidance. Their parents were unable to give them adequate care and attention.  D1 quitted school in early 2016 and did not complete Form 3 secondary education.  He mingled with friends with triad background. 

25.  In respect of the present case, Miss Mak described that the facts were serious in that there were a number of attackers.  It was fortunate that the victims did not suffer permanent injuries. 

26.  Miss Mak highlighted the salient points of the reports, ie

(i) in para 4 of the background report, the Probation Officer said: “Mr Cheung, Welfare Officer at Detention Centre, is satisfied with the accused’s overall performance and recommends his continuous stay for further training.”

(ii) at page 3 of the TC/DC suitability report, Officer Ka said:“According to his supervision officer Mr Choi, defendant was average in response to the training program. He was able to tune in the disciplinary training in the Detention Centre and made steady progress ..…. Defendant appeared to be polite and cooperative during the interview. He confessed his guilt …… and showed some sense of remorse.”

27.  In light of the aforesaid, Miss Mak urged the court to let D1 stay in the Detention Centre to receive training. 

The 2^nd defendant

28.  Mr Mok submitted that D2 associated with bad peers and committed the present offences without a reward.  He referred to page 3 of the DC/TC Suitability Report ie “defendant managed to behave while receiving training in the reformatory school and showed fair response towards the rehabilitation programmes.”

29.  Same as Miss Mak, Mr Mok urged the court to order D2 to a Training Centre so that he could be disciplined.

REASONS FOR SENTENCE

30.  In passing sentence, I take into account everything said and written by the solicitors for both D1 and D2 together with the letters written by D1 and his father. 

31.  Besides, I have examined (i) the exhibit ie the 18-inch long plastic rod and (ii) looked at the 4 photo albums some of which depict the injuries suffered by both PW1 and PW2.

32.  Having considered all the circumstances of the case, I find that the facts of the case are serious. 

33.  The defendants did not act alone in committing the crime.  There were seven to eight assailants.  It was a large group of gang.  Besides, the attack was a result of a premeditated plan as the assailants were armed with long rods.  It was also a revenge attack on PW1 with whom they had a previous dispute.  The attack lasted for one minute.  The weapon used albeit was not a lethal weapon such as a knife or a chopper, it was a plastic rod which is a hard object.  It goes without saying that anyone who is hit by the rod will suffer pain.  It was only sheer luck that PW1 and PW2 did not suffer awful injuries.  They were treated and discharged on the same day. 

34.  Mr Chain, counsel for the prosecution, informed the court on previous occasion that the victims did not suffer permanent injuries or disabilities. They were not required to attend any follow up consultation.  He also submitted that the injuries suffered by the victims were not serious. 

The 1^st defendant

35.  In respect of D1, it is noted in the reports that:-

(a) on 6 February 2016 he committed the offence of claiming to be a triad society and was arrested on 8 March 2016 (TMCC 3388/2016). He was then released on bail.

(b) On 13 September 2016 he committed another offence of criminal damage and was arrested (TMCC 349/2017). He was again allowed bail.

(c) On 21 November 2016, he was arrested for the present offences.

(d) On 8 March 2017, he was sentenced to a detention centre for the TMCC cases.

36.  He committed the offences in (b) and (c) above whilst on bail.  It is obvious that he did not learn a lesson until he was remanded in a DC. 

37.  Notwithstanding what I have just said about the seriousness of the case, I note from the circumstances of the case and the contents of the reports which include the following:-

(i) since he has already started his training in the DC;

(ii) his performance is satisfactory;

(iii) he adjusted well in DC;

(iv) he responded fairly to the training programme and made steady progress;

(v) he is recommended to continue to receive further training;

(vi) his parents failed to give when he was young,

(vii) he committed the offence when he was 17; and

(viii) the victims were assaulted in one minute and did not suffer serious injuries,

38.  I am prepared to give him one last chance so that he could reform himself and to start afresh.

39.  The DC emphasises strict discipline, strenuous training, hard work, and a vigorous routine.  It provides a rigorous regime of Short, Sharp and Shock. It is what I consider best for D1 to be disciplined in a confined setting.  It is hoped that upon release he will dissociate himself from the undesirable peers and act on the promises he made in his letters to the court.

40.  For D1, I sentence him to a Detention Order for both offences to run concurrently with each other.

The 2^nd defendant

41.  As for D2, he lacked interest in school and mingled with bad peers who have triad background.  He was placed on a Care or Protection Order in May 2011.  He was detained in a Juvenile Home in October 2011, however, he misbehaved himself as he assaulted an inmate there and professed to be a member of 14K.  He was then placed on Probation.  His performance during the probation period was below average.  He was assigned by the probation officer to study at as special school for social development, however, he failed to turn up for school from time to time.  He was in breach of the probation order and was sentenced to a reformatory school in June 2012. 

42.  Upon release in 2014, he evaded supervision from the reformatory school and relapsed to drug abuse.  He mingled with the bad peers again.  In view of his unsatisfactory performance, he was brought before the court for breach of the rules of reformatory school and was sentenced to a DATC in August 2014.  He was released in February 2015 and was under one-year statutory supervision. Once again, he re-associated with his triad peers and maintained his drug taking behaviour.  There was further misbehaviour.  

43.  It could be seen that he was given many chances in the past to reform but he did not treasure each and every opportunity. 

44.  I note in the reports that D2’s parents were recidivists and were put behind bars a number of times.  The parental supervision and guidance were largely loose and inadequate.  D2 was looked after by his maternal aunt.  These might be the causes of his delinquent behaviour.  In other words, D2 has never received any proper guidance, care, teachings and supervision in his childhood. 

45.  I consider that D2 is in need of correctional and disciplinary training. 

46.  I am prepared to give him one last chance to reform himself and I sentence him to a Training Centre for both offences to run concurrently. 

47.  I hope the defendants are minded to mend their ways and they will make use of the opportunity to start afresh.  I must warn them that upon release from the DC/TC, if they commit further crime, it is almost inevitable that they will face a term of imprisonment.