HKSAR v. CHEUNG YUK MING AND OTHERS

DCCC 822/2023 & 641/2024 (Consolidated)

[2025] HKDC 1415

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 822 OF 2023 & 641 OF 2024 (CONSOLIDATED)

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REASONS FOR SENTENCE

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Charges

1.  D1, D2, D3, D4, D6, D7 and D8 plead guilty to unlawful Assembly (Charge 2).  D8 pleads guilty to failing to surrender to lawful custody (Charge 3).

Facts provided by Prosecution against D1 to D4 and D6 to D8 on Charge 2

2.  The prosecution provides to this Court the following facts:

(i)  [On 19 September 2022] “Inside Bar” (the “Bar”)  was situated at Shop 22, G/F, Yuccie Square, No 38 Yuen Long On Ning Road. There was a VIP room (the “VIP Room”)  in the innermost part of the Bar. The back bar area was adjacent to the VIP Room. The Bar had a main entrance and a rear entrance.

(ii)  CCTV of the Bar and Yuccie Square captured the following on 19 September 2022:-

(1)  Kan Chun Ho (“Kan”)  entered the VIP Room at 12:20 am and at that time, there were about 10 people (including D1-3 and D7)  at the table right outside the VIP Room (“Party B”);

(2)  D1-2 entered the VIP Room at 12:22 am;

(3)  Kan was forced out of the VIP Room at 12:23 am, and he was then punched by a man (“WP1”);

(4)  Kan struggled with WP1;

(5)  Some of Party B pulled WP1 away and struggled with WP1;

(6)  About 10 people including D4, D6, D8 and a male (“Party A”)  then went out of the VIP Room joining WP1, and D1-2 were forced out of the VIP Room in the meantime;

(7)  Party A and Party B were pushing each other outside the VIP Room, and D8 raised a machete in the course;

(8)  D6 also took two bottles from a fridge in the back bar area and threw them towards Party B;

(9)  D6 then took a few more bottles from the fridge;

(10)  D3 punched D7’s face at 12:25 am;

(11)  D3 then walked out of the Bar via the main entrance at 12:25 am;

(12)  D3 returned to the Bar via the main entrance about 15 seconds later and re-joined Party B;

(13)  D3 then punched a male’s head from behind;

(14)  D6 waved a glass bottle which was taken out from a refrigerator;

(15)  Party A and Party B separated at 12:26 am;

(16)  D1 then threw a chair towards Party A;

(17)  D6 also threw a chair from the back bar area towards Party B;

(18)  Party A and Party B argued again;

(19)  D1-2 also threw chairs towards Party A;

(20)  Party A and Party B separated at 12:27 am but they kept arguing;

(21)  D2 then threw a few objects towards Party A at 12:29 am;

(22)  Party B later went out of the Bar via the main entrance at 12:30 am;

(23)  Inside the bar, a male passed a machete to one of Party A;

(24)  Party A then went out of the Bar via the rear entrance;

(25)  Party A and Party B then got into a fight outside the Bar for about a minute;

(26)  In the course, D6, who was outside the bar, took a machete from one of Party A;

(27)  D3 later dragged one of Party B to the bush outside the Bar and hit him on the ground;

(28)  D2 then went to the bush to assist D3;

(29)  D7 later slashed D2 with a machete at the bush, and D2 struggled with WP1;

(30)  D4 also threw his bottle towards D2;

(31)  Party A and Party B later separated at 12:34 am.

(iii)  PC17591 (“PW1”)  arrived Yuccie Square and found the injured Kan and D1-3. PW1 then entered the Bar for investigation.

(iv)  Three knife sheaths were subsequently seized by the Police in the Bar.

Medical findings

(v)  Kan was sent to Pok Oi Hospital subsequently. He was found to have lacerations over left forehead, right eyebrow and chin; abrasion over left hand; left parietal scalp hematoma; and right peri-orbital soft tissue swelling.

(vi)  D1 was sent to Tuen Mun Hospital. He was found to have deep laceration wound over volar aspect of left index finger with loss of flexion movement.

(vii)  D2 was sent to Tuen Mun Hospital. He was found to have multiple lacerations over forehead, left leg, right leg and left hand.

(viii)  D3 was sent to Tuen Mun Hospital. He was found to have lacerations over right eyebrow, left frontal scalp and left forearm dorsal aspect.

Arrest

(ix)  D1 was arrested on 19 September 2022. D2 was arrested on 20 September 2022. D3 was arrested on 21 September 2022. D4 was arrested on 29 October 2022. D6 was arrested on 20 May 2023. D7 was arrested on 6 August 2023. D8 was arrested on 31 December 2023.

Facts provided by Prosecution against D8 on Charge 3

3.  The prosecution provides to this Court the following facts:

(x)  D8 failed to appear in the District Court for plea day of this case on 22 August 2024, resulting in a warrant of arrest issued against him on the same day.

(xi)  D8 was re-arrested at 2350 hours on 22 August 2024 at Wu Yue House, Wu King Estate in Tuen Mun, and the warrant of arrest was executed accordingly. Under caution, D8 claimed that he was sick so he did not attend Court.

(xii)  In the cautioned interview, D8 explained that he suffered from flu and stomachache but he did not receive any medical treatment. He was aware of that he needed to attend Court that day but as he felt unwell, he took some medication and fell asleep.

(xiii)  D8 was brought before Court on 23 August 2024.

Mitigation

4.  D1 is now 44 years of age.  He has criminal records but nothing similar to the present charge.  He has four children.  He is a transportation worker.  

5.  D2 is now 39 years of age.  He has criminal records but nothing similar to the present charge.  He has three children.  He is a decoration worker.  D3 is his natural brother.  

6.  D3 is now 34 years of age.  He has criminal records, among them one of common assault in 2004.  This record of two decades ago is not an aggravating factor in his sentence.  He is a construction worker.  

7.  D4 is now 27 years of age.  He has criminal records but nothing similar to the present charge.  He has been working as a salesman for a seafood supplier since 2021.  His child is 2 months old now.  His wife suffers from postpartum depression and is at risk of self-harm.  There are grave difficulties she faces in taking care of herself and the child in his absence. His counsel asks me to give him a discount for this unfortunate turn of events so that he can be released earlier to take care of her and the child.   

8.  D6 is now 29 years of age.  He has criminal records but nothing similar to the present charge.  He has two children.  He was a car salesman on the day of the offence.  He is a chef now. 

9.  D7 is now 27 years of age.  He has criminal records but nothing similar to the present charge.  He is a salesman in a pet shop.  He has two children with his fiancée.  

10.  D8 is now 28 years of age.  He has criminal records but nothing similar to the present charges.  He was a transportation worker before.  He is now a kitchen worker.  

11.  Defence counsel submit in sync that there is no evidence that the violent confrontation was premeditated.  The confrontation lasted only 11 minutes, from 12:23 am to 12:34 am.  They urge me to pass a sentence commensurate with the respective roles of the defendants.  

12.  I have identified 3 levels of decreasing aggressiveness and culpability as follows:

(1)  D7 has to be the most aggressive and culpable offender in the present case. As the parties moved to the outside of the bar to continue with the confrontation, D7 slashed D2 with a machete at the bush. There is no evidence that the machete was brought along by D7. D2 sustained multiple lacerations (forehead, legs, hand)  from the whole confrontation;

(2)  D6 threw glass bottles and a chair at others in the bar. He took a machete outside the bar. There is no evidence of how he used it. D1 and D2 threw chairs and other objects at others in the bar. D3 punched D7’s face, then another male’s head from behind in the bar. He dragged a member of Party A to the bush outside the bar and hit him. D1, D2, D3 and D6 were less aggressive and culpable than D7;

(3)  D4 threw his bottle towards D2 outside the bar. D8 raised a machete in the course of the confrontation outside the VIP Room, a very intimidating act by itself. However, there is no evidence of what he did afterwards. D4 and D8 were the least aggressive and culpable offenders.

Sentencing considerations

13.  There is no tariff regarding the sentence of Unlawful Assembly, but the Court of Final Appeal in Secretary for Justice v Wong Chi Fung [2018] HKCFA 4 endorses the relevant factors laid down by the Court of Appeal, namely:

“(1)  Whether the violent acts were spontaneous or premeditated; if it was the latter, how detailed and precise the plan was;

(2)  The number of people involved in the violent acts;

(3)  The degree of violence, including whether weapons were used and, if so, what kind and quantity of weapons;

(4)  The scale of violence, including the location, the number of places and the area in which violence took place;

(5)  The duration of violence, including whether the violent act was a prolonged one, and whether it still went on despite repeated warning by police or public officers;

(6)  The consequences of the violent act: for example, whether there was any loss or damage to properties and, if so, to what extent; whether anyone was injured and, if so, the number of injured persons and the degree of injury;

(7)  Even if there was no loss or damage to properties, nor any injury, what imminence and gravity of threat was caused by the violent acts;

(8)  The offender’s role and degree of participation; for instance, apart from taking part in the unlawful assembly, or using violence, whether he had arranged, led, summoned, incited or advocated others to take part in the unlawful assembly or use violence.”

14.  There is a need to examine the individual roles of the defendants so that their sentences are to be assessed accordingly (HKSAR v Muhammad Rizwan & Others [2019] HKCA 643). 

15.  On another note, counsel seek to have the sentences reduced based allegedly on a delay in the proceedings for over 31 or 32 months.  They were arrested in September or October 2022, as the case may be.  There were multiple adjournments in the District Court, including 31 August 2023, 2 November 2023, 23 January 2024, 23 April 2024, 13 June 2024, 22 August 2024 and 24 October 2024, not being the fault of the prosecution or the defendants.  As I see it, those adjournments were the results of various defendants, including some seeking legal aid representation, making preparations for trial/plea, or as plea bargaining, as the case may be.  I do not see any time wasted on those subject-matters.  There is no delay in the proceedings to merit a discount in the sentence.  

Sentencing Defendants in Present Case

16.  As regards the most aggressive and culpable offender D7, I take 3½ years as the starting point.  A one-third discount given for his guilty plea, his sentence is 2 years and 4 months for Charge 2. 

17.  I understand that D7 had been arrested for the present matter and detained by the Court for 60 days under another court case number.  That case was then withdrawn, so that D7 was released, before the present case.  His counsel asks me to endorse such 60 days as part of the present sentence already served.  The prosecution has no objection.  I hereby make the order. 

18.  As regards each of D1, D2, D3 and D6, I take 3 years as the starting point.  A one-third discount given for the guilty plea, the sentence is 2 years for Charge 2. 

19.  As regards each of D4 and D8, I take 2½ years as the starting point.  A one-third discount given for the guilty plea, the sentence is 1 year and 8 months for Charge 2.  I give D4 a further discount of 2 months due to the unfortunate circumstances that has been affecting his wife after childbirth.  D4’s sentence is 1 year 6 months. 

20.  D8 failed to surrender to lawful custody for less than a day on Charge 3.  The starting point is 6 days’ imprisonment.  I sentence him to 4 days because of his guilty plea.  This sentence shall be consecutive to Charge 2.