DCCC321/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 321 OF 2004

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Reasons for Sentence

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1.  Defendant, you originally appeared as D2 in this case and you have pleaded guilty to three offences of wounding with intent, each contrary to section 17(a) of the Offences Against the Person Ordinance, Cap.212., and one offence of failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap.221. Today, you have admitted the Brief Facts and I have convicted you.

2.  Briefly, the facts are as follows. At about 4.30 am on 4 February of 2004, Ko Man-hing (PW1), Tang Hon-man (PW2), Tang Man-lok (PW3), Tsang Cheuk-hung (PW4), Fong Chung-lung (PW5) and Lam Ka-chun (PW6) were having snacks at Chiu Fung Food Stall at Sai Ching Street, Yuen Long. D1, D3 and you sat at a table nearby. PW2, PW4 and PW5 were previously acquainted with you while PW2 was previously acquainted with D1.

3.  PW3 suddenly complained that the beef was not well‑cooked. Someone from your table shouted, “If the beef is not well-cooked, don’t fucking eat it.” PW1 and PW2 then had a heated argument with you and D1. D1’s friends separated you. However, you shouted loudly to D1, “I feel bored tonight. I am looking for a fight.” D1’s friends again separated you from the prosecution witnesses. Shortly afterwards, you, D1 and D3 left while PW1 to 6 continued eating.

4.  Five minutes later, PW1 and PW2 saw you and D1 return to the stall. By this time, you had armed yourselves with choppers. You first rushed towards PW3. D1 chopped her neck. D1 then rushed at PW1 to chop him, but PW1 pushed him away. At the same time, you chopped PW2 once. You then chopped PW1 once. PW2, PW4, 5 and 6 picked up stools and threw them at you and D1. You fled with D3. D3 had acted as a lookout.

5.  At 5.57 am that day, police officers patrolling at the junction of Sai Yue Street and Sai Ching Street saw you three defendants walking hastily towards Ma Tong Street. D1 was still carrying a chopper. All three of you were arrested.

6.  PW1, 2 and 3 went to Tuen Mun Hospital and the following injuries were found:

PW1 - his left-hand small finger was fractured, had left head injury, left forearm and left leg injuries and various lacerations;

PW2 - a 5-centimetre wound over the posterior aspect of the elbow and more than 50 per cent of triceps tendon cut and a 5-centimetre loose osteochondral fragment in the posterior joint surface;

PW3 - a 7-centimetre laceration down to the bone over the right occupu. The scalp was repaired by sutures.

7.  Four prosecution witnesses identified you at a formal identification parade. The chopper you had used was recovered not far from the scene.

Charge 4

8.  You were granted bail by the District Court to surrender for trial on 11 May 2004. However, without reasonable cause, you failed to surrender. Presumably, a warrant was issued. On 31 August of this year, you surrendered to the police voluntarily.

9.  You are a man of hitherto clear record. Mr Yip entered mitigation on your behalf. Having heard that mitigation, I am persuaded there is no need to call for a background report. That was full and comprehensive. Mr Yip confirmed that you yourself had surrendered to the police. You were resolved to serve your sentence and put the past behind in order that you could continue with your life. Part of the reason I am told is that you have formed a relationship with a lady from the mainland and you have two children between you and it is your intention to marry once you are free to do so.

10.  In 2002, you had married and separated in 2008. There is one child of that marriage. That marriage is heading towards divorce. I am also told that in 2000, you yourself were chopped, and as a result of the chopping, sustained permanent leg injuries. The result is that you are disabled. During the time that you absconded, you had been working part-time, doing odd jobs in a roast-meat shop.

11.  Mr Yip told me that you are 42 years of age, educated to Form 2 and extremely remorseful for what you have done. A letter was produced which confirms this. I also understand that a priest is attempting to help you to find work and generally offering support.

12.  In relation to the offence itself, I am told that on the night in question, you had taken drink, that in the argument, the prosecution witnesses had provoked you by teasing you and causing you a lame duck. This had led to you losing control, arming yourself with a chopper and, hence, the offence.

13.  Very fairly, Mr Yip concedes on your behalf that it cannot be said you played a lesser role than D1. Indeed, from the facts, it would appear that you were perhaps the more provocative. On your behalf, Mr Yip asked me to regard this as one incident rather than three offences and to sentence all concurrently and also to consider a concurrent sentence for the failure to answer bail.

14.  D1, I am told, had one previous conviction for theft. My brother judge took a starting point of 3 years’ imprisonment reduced by one-third for D1’s plea of guilty and allowed a further 2-month discount because it was out of character. The sentence D1 will now have served in fact was one of 22 months’ imprisonment. I have to say in my opinion that was a very merciful sentence.

15.  This, in my opinion, is a very serious matter. You deliberately armed yourself with choppers and inflicted serious injuries on three persons. However, in fairness to you, it would be wrong in principle, in my opinion, to depart from that 3 years established by my brother though I can see no reason to allow any further discount over and above that for the normal plea of guilty.

16.  Therefore, on each of the offences of chopping, I take a starting point which as I have said I regard as very merciful of 3 years’ imprisonment. That is reduced to 2 years for your plea of guilty. You will go to prison for 2 years on each concurrent. Therefore, the total imprisonment for the assault is 2 years.

17.  For the offence of absconding, this was a substantial absconding of over six years. It was deliberate; it was wilful. I take as a starting point 4 and a half months reduced to 3 months for your plea of guilty. You will go to prison for 3 months but this will be consecutive to your sentence. Therefore, you will go to prison for a total of 2 years and 3 months - 27 months.