HKSAR v. TSE CHAK KWAN

DCCC 593/2019

[2020] HKDC 511

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 593 OF 2019

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REASONS FOR SENTENCE

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1.  One evening in April 2019, the owner of a Games Centre situated in Cheung Sha Wan Road, Sham Shui Po, Mr. Luo, was shot and injured by the defendant’s friend, Mr. Yeung, a customer of the centre, with a nail gun over a dispute about the gaming policy of the centre.  

2.  Earlier in the day before the shooting incident, the defendant came across a female staff member of the centre, Miss Li, in the street telling her to pass on a message to Mr. Luo that unless Mr. Luo resolved the matter with Mr. Yeung that same evening he would be chopped.

3.  The shooting incident occurred later in the evening when the defendant and his friend, Mr. Yeung, met Mr. Luo in Cheung Sha Wan Road, which eventually involved the police.

4.  Subsequently both of them were arrested by the police and each charged with separate offences: Mr. Yeung was charged with wounding 17 (Mr. Luo is the victim) whilst the defendant with criminal intimidation (Miss Li is the victim).

5.  Their case was transferred to the District Court for plea. The defendant was granted bail pending legal advice to re-appear before the court on 31 October 2019, however, the defendant failed to show up on the return date, and a warrant for his arrest was therefore issued.

6.  On 19 December 2019, his co-defendant, Mr. Yeung, pleaded guilty before another court and was sentenced to 28 months’ imprisonment.

7.  Some three months later in the small hours on 19 February 2020, the defendant was arrested by a patrol officer in the streets in Sham Shui Po upon an ID check bringing to light the fact that he was wanted by the police.  Under caution, he could not provide any reasonable explanation for his absence from court.

8.  The defendant pleaded guilty before me to one count of failing to surrender, contrary to section 9L (1) and (3) of the Criminal Procedure Ordinance, Cap 221 while his other charge of criminal intimidation was withdrawn by the prosecution because the police could not locate Miss Li since January 2020.

9.  All possible means had been tried by the police such as visiting her place of work, her home, telephone contacts etc., but all their efforts were in vain.

10.  The defendant, aged 30 single, has amassed 6 convictions over the past 13 years- common assault, using false instrument, gambling, drugs and possession of offensive weapon, nothing similar to the present offence.

11.  The court heard that the defendant had been out of job for 2 years prior to the commission of the present offence and he used to be a delivery worker earning about $20,000 a month.

12.  Counsel for the defendant, Mr. Leung, submitted that the defendant committed the offence out of anxiety and stupidity and is now remorseful. Mr. Leung went on to say, and I quote, “that his anxiety stemmed from the criminal charge hanging over his head for what he perceived as a long period of time. His anxiety was further exacerbated by the 2019 political protests and violence in Hong Kong that was still in full force on 31 October 2019.”

13.  In the case of Lo Kam Fai CACC 374/2014, one of the authorities relied upon by Mr. Leung, the Appellate Court stated in paragraph 80 of the judgment:

“As for the sentence for absconding, it seems that sentences in Hong Kong may vary according to the circumstances from 2 months to 4 months after plea of guilty. Of course, there will be factors which may bear on the length of sentence, such as why the defendant absconded; how long he absconded for; whether he left the jurisdiction and, perhaps, how; the effects of his disappearance on the parties to the trial, including the witnesses; whether he surrendered voluntarily; as well as other relevant factors in aggravation or mitigation of the offence.”

14.  Given the relatively short period of absconding, 3 months and 19 days, Mr. Leung suggested that a starting point of 3 months should be about right in the circumstances of the present case.

15.  In Law Ying Kam CACC 183/2015 where the appellant having pleaded guilty was given a wholly consecutive sentence for the offences of absconding and drug trafficking. He has absconded for almost a year. His application for leave to appeal against his sentence was refused, the appellate court in confirming the decision of the sentencing judge has this to say:    

“Failing to turn up at court when entrusted with bail by that court is a serious breach of a court order. In this case, the applicant absconded when facing a serious charge for almost a year. In my view, it is not reasonably arguable that a sentence of six months’ imprisonment, made wholly consecutive to the sentence for the main offence, was manifestly excessive or wrong in principle.”

16.  The offence of absconding carries a maximum term of one year.  In Lo Kam Fai, the Appellate Court set out the factors to be considered in sentencing an offender for absconding which was not meant to be an exhaustive list, the length of absconding is just one of the factors.

17.  The other factor is the effect of his disappearance on the witnesses, that is Miss Li in the instant case. Mr. Leung contended that there was nothing to connect the missing of a prosecution witness with the disappearance of the defendant and urged the court not to speculate.

18.  I think it is true to say that the risk of losing a witness to testify for the prosecution increases with the length of time the offender has absconded- that would have a negative impact on witnesses affecting their memory of the events, their willingness to testify or even their ability to do so (for example- the death of a witness). The longer the time, the more likely this may happen.

19.  In the instant case, the fact which is incontrovertible is that the withdrawal of the criminal charge was due to the missing of the witness. While not pointing the guilty finger directly at the defendant, his absconding, in my view, had a negative impact on the prosecution witness- without her, the defendant now could get away with the offence of criminal intimidation. From a justice point of view, the situation is a lot more serious than it would otherwise have been.

20.  For the reasons given above, I take 6 months as the starting point and reduce it to 4 months for his timely plea. As there being no reasons for further reduction, the defendant is therefore sentenced to 4 months’ imprisonment.