HKSAR v. TSOI SHING CHUEN AND OTHERS

Consolidated

DCCC 782, 858, 875, 878 & 995A/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NOS. 782, 858, 875, 878 AND 995A OF 2013

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REASONS FOR SENTENCE

I am not sentencing all the defendants listed above. D6[1], D11[2] and D22[3] have pleaded guilty to the respective charge(s) laid against them, and were sentenced by another judge in early 2014. Charge 9 against D18 has also been severed from this trial.[4]

The Guilty Pleas

2. D4, D8, D12, D14, D16 and D17 have pleaded guilty to the respective charge(s) laid against them.  I will deal with them first.  The table below sets out which charge concerns which defendant(s) :-

Charges	Offences	Defendants
3	Conspiracy to commit criminal damage	D4
4	Conspiracy to commit criminal damage	D4
5	Conspiracy to commit common assault	D8
6	Acting as a member of a triad society	D12
7	Acting as a member of a triad society	D16
8	Acting as a member of a triad society	D8 and D17
12	Failing to surrender to custody without reasonable cause	D14

Summary of Facts

Background

3. From May 2011 to January 2013, PC 7480 (PW1) was assigned to be an undercover agent to infiltrate into triad societies.  In May 2012, he joined the 14K triad society and D1 was his "protector".

Charge 3 (against D4)

4. In the afternoon on 31 May 2012, D1 instructed PW1, D3, D22 and someone named "Ho Yin" to conduct a paint-splashing operation at the 2 locations particularized in the charge.  

5. PW1 and D3 splashed paint at the Kwai Chung address; whereas D22 and "Ho Yin" went to the Tsuen Wan address.  When they completed the job, PW1 and D3 went to Kowloon City to report the results of their work to D4.  D4 then took them to meet D5.  PW1 transmitted the video footage of D3's paint-splashing act to D5's mobile phone.  D4 and D5 both praised PW1 and D3 for their work and promised to engage them in future similar work.

Charge 4 (against D4)

6. Charge 4 can be regarded as a sequel to Charge 3.

7. On 12 June 2012, PW1, D3 and "Ho Yin" were tasked to splash paint at the same 2 locations.  This time, PW1 and D3 went to the Tsuen Wan address; whereas "Ho Yin" went to the Kwai Chung address.

8. Before the operation, "Ho Yin" asked PW1 to phone D4 to obtain money to purchase paint.  D4 instructed them to buy less than $100 of paint.  D4 told PW1 to purchase red paint and to take a recording of the incident.  D4 also told them that the paint must be splashed between 7:00 pm and 9:00 pm and that the splashing must be carried out simultaneously.

9. After the job was completed, PW1 received a phone call from D4 asking PW1 to relay the events to him.  D4 asked PW1 and D3 to meet him in Kowloon City.  PW1, D3 and D4 eventually went Lok Fu Shopping Centre where they met up with D5.  D5 asked PW1 to transfer the video footage of their paint-splashing job to him. Later, D5 gave $200 to D4 for the cost of the paint, and D4 gave $100 to PW1.

Charge 5 (against D8)

10. Between 18 and 24 June 2012, D1, D3, D6, D7 and D8 conspired together to assault a female, who allegedly worked at Times Square in Causeway Bay.  The plan was to locate the female, wait for her to go off duty and use a shaver to shave her hair.

11. D1 provided the group with a photograph of the female and a piece of paper which contained her personal particulars including her name, place of work, working hours and the bus route number she would take to go home from work.

12. On 18 June, 3 of the conspirators and PW1 went to Causeway Bay to carry out the attack.  The attempt was abandoned since they were unable to find the female.

13. On 23 June, PW1 met up with 2 conspirators again at Times Square.  D8 was also present on this occasion; he had a hair shaver with him.  Each person in the group was assigned specific tasks and locations to look for the female.  The search for the female was unsuccessful.  The group (including D8) took a bus from Causeway Bay to Shamshuipo.  During the bus journey, D8 had a dispute with someone in the group.  He used the hair shaver as a weapon in the dispute and broke it. PW1 took possession of the broken shaver and kept it as an exhibit.

14. In the evening on 24 June, the same group of 4 males returned to Times Square to find the female.  D8 had a black hair shaver on this occasion.  D8's role this time was to shave the female's hair whilst others would assist the group to escape after the attack.  D8 also had in his possession of the piece of paper which contained the personal details of the female provided by D1.

15. Attempts to locate the female were again unsuccessful.  The group decided to go to look for the female in the vicinity of her residence in Homantin.  Once again, they could not find her.  The group later received instructions not to find the female or to carry out the attack any more.

Charge 6 (against D12)

16. In the early hours on 20 August 2012, D1 gathered 14K members including PW1, D6, D9, D10, D11, D12 and D13 to seek revenge against someone named "Poon Chai".  D1 led the group to the 13^th Floor of a building situated at Yee Kuk Street, Shamshuipo.

17. In the process of searching for "Poon Chai", D1 led some people to go downstairs.  D1 directed members of his group to pick up some hard objects since "Poon Chai" might have weapons.  The group complied with D1's instruction and picked up some hard objects at the staircase.  D12 was one of the persons in the group, but he did not pick up any object.

18. The search for "Poon Chai" was unsuccessful.  D1 dismissed the group. D12 participated in the activity described above and in so doing committed the offence of "Acting as a member of a triad society".

Charge 7 (against D16)

19. In the evening on 26 October 2012, PW1 and a number of 14K members assembled at D1's residence in Shamshuipo.  D1 informed those present at his home that they need to show force since a settlement talk was arranged with the opposite party.  D1 instructed his group to go to a nearby restaurant.  He told them that "a fight might break out".  The group then went to the restaurant and waited for D1's further instructions.

20. D1 later arrived at the restaurant and chatted with some people outside the restaurant.  He then informed PW1 and others in the group not to be conspicuous in order to avoid Police attention.  D1 instructed his people to go to a cyber cafe at Un Chau Street in small groups.

21. D1's group returned to the restaurant some time later.  D1 was chatting with 5 persons (one of them being D16) outside the restaurant.  At the suggestion of D16, D1 told his group that should they see the opposite party (i.e. someone named "Sor Lung"), they should start a fight with him.  At that time, D1, PW1, D16 and others had moved from the restaurant to Kee Lung Street.

22. The group walked along various streets heading towards Shek Kip Mei Street, eventually returning to D1's residence.  D1 later received a phone call telling him that the 2 triad societies had settled the dispute.  He then told his group to stand down.

23. D16 had participated in the above activity and in so doing had committed the offence of "Acting as a member of a triad society".

Charge 8 (against D8 and D17)

24. In the evening on 15 November 2012, D1 gathered his triad followers (including PW1, D8, D17 and D21) to show force at a negotiation between him and another 14K triad member (D18).  The group gathered at Ground Floor, No.484 Nathan Road first.  D1 informed them that he had a dispute with D18 and there was likely to be a fight.

25. D1 later brought his group to D18's residence to attend the negotiation.  Upon arrival, D18 said "We all belong to 'number' (i.e. 14K), there is no need to bring so many people to attend the negotiation."  D1 and D18 went into a room for a private discussion.  About an hour later, they reached an agreement and D1's group was stood down and dispersed.

26. D8 and D17 had participated in the above activity and in so doing had committed the offence of "Acting as a member of a triad society".

Charge 12 (against D14)

27. On 8 October 2013, D14 was granted bail by a District Judge until 15 November 2013 in connection with the present case.  He failed to appear in the District Court on 15 November 2013.  A warrant of arrest was issued against him.  D14 did not appear in the subsequent court hearings or surrender voluntarily to custody. He had no reasonable cause for failing to surrender to custody on 15 November 2013.  His whereabouts remained unknown until 26 February 2014, when he was admitted to the hospital for burn injuries.  He was arrested and brought to the District Court on 28 March 2014 and had been remanded in jail custody since.

Mitigation

D4

28. He is almost 40 and single.  He has 7 conviction records, none of which are triad-related.  He was sentenced to 2 months' imprisonment suspended for 18 months for "simple possession" in January 2012.  D4 committed Charges 3 and 4 just a few months into the suspension period.

29. Mr. KWAN submitted that D4 was in need of money to prepare for his wedding.  He therefore took up the paint-splashing job.  He received only $3,000 as his reward.

D8

30. He is now 46 and single.  He has 12 conviction records, which include 2 offences of "Assault occasioning actual bodily harm".

31. Mr. LEUNG informed me that D8 has a girlfriend for 2 years.  His girlfriend has a child, but D8 is not the father.  Mr. LEUNG explained that D8 absconded during trial because his mother had cancer and was dying.  She passed away 2 months ago.  D8 was brought up by his mother alone and he was close to her.  Mr. LEUNG submitted that although D8 pleaded guilty to the charges at a rather late stage, he did not challenge the prosecution evidence too much.  Regarding Charge 5, Mr. LEUNG pointed out that D8 only joined the search for the female victim on the last 2 evenings.  In Charge 8, it was his mere presence.

D12

32. He is 29 and single.  He has 10 conviction records, none of which are triad-related.  Mr. LEUNG submitted that for D12 in Charge 6, it was his mere presence.  He is remorseful and has pleaded guilty to the charge at the outset.  D12's father was suffering from cancer of oesophagus and received surgery last year.  A letter written by D12's mother was placed before me; its contents are duly noted.  Mr. LEUNG also submitted that having been remanded in jail custody for almost a year, D12 has no more drug addiction.  He has decided to turn a new leaf in his life.

D14

33. He is now 49 and divorced.  He has 6 conviction records, none of which are triad-related.  He has no record of absconding either.  D14 also faced Charge 7 in the present case, but was found not guilty after trial.  He was granted bail pending sentence on 3 November 2014.

D16 & D17

34. D16 is now 26 and single.  He has 7 conviction records, which include a "Claiming to be a member of a triad society" offence.  He was sentenced to 5 years and 2 months' imprisonment in December 2013 for "drug trafficking". Mr. WAI submitted that D16 has been feeling the anxiety for his sentence since he pleaded guilty to the charge in May.

35. D17 is now 33 and single.  He arrived at Hong Kong in August 2006 and already has 7 conviction records, none of which are triad-related.  Mr. WAI submitted that D17 is a torture claimant, but will no longer pursue his claim.  He wishes to return to Pakistan as soon as possible.

36. Regarding Charges 7 and 8, Mr. WAI submitted that no actual violence was involved and there was hardly any planning or pre-meditation of any kind.  Both so-called "operations" were loosely organized and no one was armed with any weapons.

37. In Charge 7, there was no confrontation at all.  The group was just running around looking for an elusive enemy.  Mr. WAI submitted that all 3 of his lay clients (namely D16, D19 and D20) were merely "foot soldiers".  And the consequences of the incidents in both charges were – nothing happened.

Sentence

38. In order to maintain consistency in sentencing, I have had the benefit of reading the Reasons for Sentence written by His Honour Judge J. CHAN in respect of D6 (dated 21 January 2014), D11 and D22 (dated 7 March 2014).  I agree with his approach and reasons.

D4 (Charges 3 and 4)

39. It is all too obvious to any reasonable person who has been living in Hong Kong for some time that the effect of splashing red paint against the walls, metal grille and wooden door of someone's home is to alarm the residents of the premises and to put them in fear.  Although the paint-splashing job may not always be performed by triad members, the act itself no doubt carries a triad overtone.  It is simply common sense.

40. As revealed in the Summary of Facts, D4 did not carry out the paint-splashing job on either occasion, but he clearly played a leadership role to some extent. Those who splashed the paint reported to him after the jobs were done.  In Charge 4, PW1 rung up D4 to obtain money from him to purchase paint.

41. D22, who appeared to be a "foot soldier" in Charge 3, was sentenced to 12 months' imprisonment after a guilty plea.  Hence, for D4, I adopt a starting point of 21 months' imprisonment each for Charges 3 and 4.  A one-third discount is given for the guilty plea, reducing the sentence to 14 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence for each charge is 14 months' imprisonment.

42. I accept that the 2 paint-splashing jobs in Charges 3 and 4 might have originated from the same "order" – both offences were committed only 12 days apart against the same 2 residential units.  Charge 4 is nevertheless independent of Charge 3. The conspirators in the 1^st paint-splashing job were not obliged to participate in the 2^nd one.  D22 has withdrawn himself from the 2^nd job and so could D4.  Having considered the totality principle, I order 2 months in Charge 4 to run consecutive to Charge 3, thereby arriving at a total prison term of 16 months.

43. Regarding his breach of the suspended sentence in ESCC 4321/2011, I make no order against D4.

D8 (Charges 5 and 8)

44. D8 absconded on 23 May 2014 (the 6^th day of trial).  He was re-arrested and brought before another judge on 11 July 2014 (during the period when the case was adjourned for final submissions).  He indicated his willingness to plead guilty to both charges upon my return from vacation leave at the end of July.  There is no question that his guilty pleas came at a very late stage.  In my view, D8 is only entitled to a 15% discount for both charges.  Apart from this, I see no other mitigating factors which warrant any further discount.

45. For Charge 5, I agree with Judge CHAN's observation that the plan to attack the female victim clearly carries a strong triad flavour.  If successfully executed, it would bring about tremendous humiliation to the victim.  It would also be a shocking and traumatic experience for her.  D8 has been convicted of the offence of "Assault occasioning actual bodily harm" twice in 1985 and 2013 respectively.  I assume the offence in relation to the 2013 conviction took place after Charge 5.  I also note that D8 only joined the search for the female victim on the last 2 evenings.

46. I am aware of the maximum penalty for "Common Assault".  I consider the act of shaving someone's hair in public carried out by a group of assailants coupled with a plan (however primitive) to identify and locate the intended victim using her personal particulars brings its criminality to the highest end of the scale for this offence.  Same as D6, I adopt a starting point of 12 months' imprisonment.  With the 15% discount, the sentence is reduced to 10 months.

47. For Charge 8, D8 was summoned to D18's flat to show force for D1 during a triad negotiation between D1 and D18.  D1 and D18 negotiated in private in a room in the flat.  D8's role was his mere presence.  Based on the Court of Appeal's decision in HKSAR v CHOY Ka Fai & others [2011] 2 HKLRD 150, I adopt a starting point of 9 months' imprisonment.  With the 15% discount, the sentence is reduced to 7 months.

48. Charges 5 and 8 are separate and distinct.  Having considered the totality principle, I order 4 months in Charge 8 to run consecutive to Charge 5, thereby arriving at a total prison term of 14 months.

D12 (Charge 6)

49. When sentencing D6 and D11, Judge CHAN took the view that Charge 6 was not just an incident of "blowing whistle" simpliciter or gathering members of a group to "show force".  The defendants involved in Charge 6 were embarking on a revenge attack against a hostile triad member.  They went to the residence of the target person, and in the course of searching for the target person, some armed themselves with hard objects they found at the staircase.  On this basis, the learned judge adopted 18 months' imprisonment as the starting point.

50. I share Judge CHAN's view. For D12, I also adopt a starting point of 18 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 12 months. Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence for D12 is 12 months' imprisonment.

D14 (Charge 12)

51. For Charge 12, the maximum sentence for conviction upon indictment is a fine of any amount and 12 months' imprisonment[5]. D14 had absconded for over 3 months.  His whereabouts would probably have remained unknown but for his admission to the hospital for burn injuries.

52. In HKSAR v WONG Chi Hung CACC 300/2010 (unreported Chinese judgment), the Court of Appeal upheld a starting point of 3 months' imprisonment for a person who has absconded for 28 days.  For D14, I adopt a starting point 6 months' imprisonment; reduce it by one-third to 4 months, which shall be his sentence.

D16 (Charge 7)

53. Similar to Charge 6, the defendants involved in Charge 7 got together to "show force" and were actively looking for their opposite party ("Sor Lung") by walking the streets in the Shamshuipo neighbourhood.  They also received instructions to start a fight with "Sor Lung" once spotted him.  What they did went beyond mere "blowing whistle" and "showing force".  On the other hand, I note that no weapons were used and nothing happened at the end.

54. D16 was a "foot soldier" in this incident.  I adopt a starting point of 15 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 10 months.  Apart from this, I see no other mitigating factors which warrant any further discount. The sentence for D16 is 10 months' imprisonment.  I order the sentence for Charge 7 to run consecutive to all his existing sentences.

D17 (Charge 8)

55. D17's role is similar to D8's.  Hence, I also adopt a starting point of 9 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 6 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence for D17 is 6 months' imprisonment.

Defendants Convicted After Trial

56. D1, D2, D3, D5, D7, D13, D19 and D20 were convicted after trial.  The table below sets out which charge concerns which defendant(s) :-

Charges	Offences	Defendants
1	Acting as a member of a triad society	D1
2	Inviting a person to become a member of a triad society	D2
3	Conspiracy to commit criminal damage	D1, D3 and D5
4	Conspiracy to commit criminal damage	D1, D3 and D5
5	Conspiracy to commit common assault	D1, D3 and D7
6	Acting as a member of a triad society	D1 and D13
7	Acting as a member of a triad society	D1, D3, D19 and D20
8	Acting as a member of a triad society	D1

57. I have stated the relevant facts at some length in my Reasons for Verdict.  I will not repeat them here.

Mitigation

D1

58. He is 51 and single.  He has 15 conviction records, which include 1 offence of "Claiming to be a member of a triad society", 2 offences of "Criminal Damage" and 3 violence-related offences.  Mr. FUNG informed me that D1 denies having joined the 14K triad society since the age of 20 as stated at paragraph (h) in his antecedent statement.  Regarding the 2 paint-splashing jobs (Charges 3 and 4), Mr. FUNG submitted that the degree of damage is unknown.  And generally speaking, no substantial personal injuries or property damage were caused in the offences related D1.

D2

59. He is 36 and single.  He has 11 conviction records, none of which are triad-related.  Mr. FUNG submitted that no violence, threat or inducement was used when inviting PW1 to be a follower of D1.  Furthermore, PW1 was an undercover agent, not a civilian.  According to PW1's own evidence, when he first met D2, D2 had turned him away saying it is not an easy life in the underworld.  In fact, PW1 was already a follower of another triad member before he was invited by D2.  A letter from D2's former supervisor was placed before me; its contents are duly noted.

D3

60. He is 35 and separated.  He has 3 conviction records, none of which are triad-related.  Regarding Charges 3 and 4, Mr. FUNG submitted that the degree of damage caused to the 2 flats is unknown.  In Charge 5, the intended assault did not materialize and no one was injured.  Similarly, Charge 7 did not bring about any harmful results.

D5

61. He is 32 and single.  He has 1 conviction record, which is a regulatory offence. Mr. KWAN submitted that Charges 3 and 4 can be treated as 1 transaction. Although the paint-splashing took place twice, both offences came from 1 "order". Mr. KWAN stressed that D5 has no triad-related convictions.

D7

62. She is 25 and single.  She resides with her parents.  She received education up to F.4 in Hong Kong.  Mr. IU informed me that D7 has been in gainful employment since she left school.  It is clear from the evidence that D7 had withdrawn herself from the hair-shaving plan after 18 June 2012.  Her role was to assist in making a video recording of the attack.  There was no evidence of any reward for her.  Mr. IU invited the court to call for a Community Service Order Report.

D13

63. He is 39 and married with 2 children.  He has 7 conviction records, which include 1 offence of "Claiming to be a member of a triad society" (dated May 1998).  Mr. IU informed me that D13 was a member of Sun Yee On when he was 18, but he is no longer a member of that triad society.  Mr. IU submitted that the cause of D13's getting into trouble in the past was his drug addiction.  In Charge 6, he was ready to give assistance to his group, but nothing more than that.  He did not do anything to encourage others nor was he the organizer.  At most, he was someone associated with a triad member.

D19

64. He is 32 and single.  He has an 11-year-old son with his girlfriend.  He has 5 conviction records, none of which are triad-related.  Mr. WAI informed me that D19 was only released by the Immigration Department the day before the offence.  Mr. WAI submitted that although D19 was brought up and received his education in Hong Kong, he did not acquire any resident status to remain in the territory.  The repatriation process against him has commenced.  D19 does not want to return to his birthplace, Thailand, since he has no ties there.

D20

65. He is 40 and single.  He has 31 conviction records, none of which are triad-related. His convictions are mostly drug-related and theft-related offences.  Mr. WAI submitted that D20 was staying at D1's place at the time of the offence; D1 provided him with free lodging and free meals.  As a result of his misguided loyalty, D20 felt obliged to assist D1 when being asked.

Sentence

66. I need not repeat here my general reasons pertaining to a particular charge which I have stated in the earlier paragraphs.  Should it become necessary and appropriate, I would give further reasons which concern the defendants individually.

D1 (Charges 1, 3, 4, 5, 6, 7 and 8)

67. In Charge 1, D1 accepted PW1 as his follower.  I consider his culpability similar to D2, who invited PW1 to follow D1.  In HKSAR v WONG Sing Chi & others CACC 245/1999 (unreported), the Court of Appeal upheld the starting point of 18 months' imprisonment for an "inviting" offence where there was no intimidation accompanying the invitation to join a triad society.  In the present case, I consider a starting point of 15 months' imprisonment appropriate for Charge 1.  D1 is convicted after trial.  I do not see any mitigating factors which warrant any discount.  The sentence for Charge 1 is 15 months' imprisonment.

68. For Charges 3 and 4, I accept that the "order" to splash paint might not have originated from D1, but similar to D4, D1 clearly played a leadership role.  Hence, the appropriate starting point is 21 months' imprisonment.  As no discount can be given, the sentence for each charge is 21 months' imprisonment.

69. For Charge 5, I sentence D1 to 12 months' imprisonment.

70. In Charge 6, D1 was the whistle blower.  I sentence him to 21 months' imprisonment.

71. In Charge 7, D1 was the whistle blower.  I sentence him to 18 months' imprisonment.

72. In Charge 8, D1 was the whistle blower.  I sentence him to 12 months' imprisonment.

73. Having considered the totality principle, I order the sentences to run in the following manner :-

(i) 2 month in Charge 1 consecutive to Charge 3;

(ii) 2 months in Charge 4 consecutive to Charges 3 and 1;

(iii) 2 months in Charge 5 consecutive to Charges 3, 1 and 4;

(iv) 2 months in Charge 6 consecutive Charges 3, 1, 4 and 5;

(v) 2 months in Charge 7 consecutive Charges 3, 1, 4, 5 and 6; and

(vi) 1 month in Charge 8 consecutive Charges 3, 1, 4, 5, 6 and 7

Thus, arriving at a total prison term of 32 months for D1.

D2 (Charge 2)

74. Based on the same reasons for Charge 1, I sentence D2 to 15 months' imprisonment.

D3 (Charges 3, 4, 5 and 7)

75. For Charges 3 and 4, D3's role was similar to D22's.  I sentence him to 18 months' imprisonment for each charge.

76. For Charge 5, I sentence D3 to 12 months' imprisonment.

77. For Charge 7, I sentence D3 to 15 months' imprisonment.

78. Having considered the totality principle, I order the sentences to run in the following manner :-

(i) 2 months in Charge 4 consecutive to Charge 3;

(ii) 2 months in Charge 5 consecutive to Charges 3 and 4; and

(iii) 2 months in Charge 7 consecutive to Charges 3, 4 and 5

Thus, arriving at a total prison term of 24 months for D3.

D5(Charges 3 and 4)

79. Similar to D4, D5 played a leadership role in Charges 3 and 4.  I sentence him to 21 months' imprisonment for each charge.  Having considered the totality principle, I order 2 months in Charge 4 to run consecutive to Charge 3; arriving at a total prison term of 23 months for D5.

D7(Charge 5)

80. She is a fresh offender and the youngest of all defendants in this case.  Comments made by the Probation Officer are positive and Community Service Order is recommended.  In view of her relatively young age, personal background and the role she played in Charge 5, I sentence her to 200 hours of Community Service.

[Requirements of Community Service Order explained. D7 understood and is willing to comply.]

D13(Charge 6)

81. D13 played a role similar to D12 in Charge 6.  I sentence him to 18 months' imprisonment.

D19(Charge 7)

82. D19 played a role similar to D16 in Charge 7.  I sentence him to 15 months' imprisonment.

D20(Charge 7)

83. D20 played a role similar to D16 in Charge 7.  I sentence him to 15 months' imprisonment.