HKSAR v. KWAN YUI HANG

DCCC636/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 636 OF 2011

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Reasons for Sentence

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1.  Defendant, I have convicted you of two charges after trial. The 1st charge was a charge of causing grievous bodily harm with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap.212. The 2nd charge was a charge of assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance.

2.  Both charges were committed at the same time on the same date, that is 26 February 2011, outside a bar called Relax 96, the Ground Floor of No. 413 Castle Peak Road, Sham Shui Po, Kowloon.  Both charges were committed with other persons, approximately seven to nine people including yourself, and on two different victims. 

3.  The victim of the 1st charge was a man called Chiu Chi-ho, and the victim of the 2nd charge was a man called So Chi-ping. They were aged 35 and 40 respectively.

4.  I found that you, aged 18, and a gang of other boys about your age or between 18 and early 20s, kicked and punched both these men. 

5.  Mr Chiu, the victim of Charge 1, was on the ground after being assaulted by you and your group of boys.  You pulverised him until he was lying on the ground motionless.  While he was on the ground with his arms and legs spread apart, you and other boys continued to kick and punch him on his body and particularly the upper part of his body, that is his head.  After he had been kicked and punched, you then went over to kick and punch Mr So until he was assaulted but not as seriously as Mr Chiu.  You and the gang of boys seemed to only stop when somebody shouted, “Police are coming”, and suddenly all of you dispersed and left the scene.

6.  Mr Chiu, as your counsel Mr Tse rightly concedes, suffered very serious injuries more particularly head injuries.  The neurosurgical diagnosis was head injury with cerebral contusion, traumatic subarachnoid haemorrhage, acute subdural haemorrhage, diffuse brain swelling and skull fracture.  He has since, I understand, completely lost his memory of this event and shows a decline in memory function.  As a result of his injuries, he had a brain operation.  From the moment after he was assaulted he was in hospital and was not discharged until over a month later, on 11 April 2011.  He is continuing to have rehabilitative treatment.  Prior to your gross assault on him he enjoyed good past health.

7.  Mr So sustained more minor head injuries with abrasions on his right face and skull.

8.  The attack on these two victims arose out of an incident that happened inside the bar earlier that evening.  There was some dispute between your group of friends and another group of people not involving these victims.  The other group of people knew Mr Chiu, the victim, and asked him to mediate in the dispute.  When you and your gang left the bar, Mr Chiu went out to mediate.  It seemed that he was almost successful until unfortunately Mr So came out of the bar, who was his friend, and a dispute arose, that is when your group attacked Mr So and then Mr Chiu.

9.  You all along denied you were present during the actual assault or attack on the victims but admit that you were there the whole time in the bar, even up to the dispute outside the bar, but left as soon as you felt that something would go wrong.  You maintain that stance now even after conviction.

10.  I found that an eye-witness’s account was accurate and reliable in identifying that you were one of the boys in the gang that attacked and assaulted both Mr So and Mr Chiu.

11.  You are 18 years of age and are of clear record.  Therefore, prior to sentencing you, I called for a full range of reports, being that of a Detention Centre, Rehabilitation Centre and Training Centre Reports to consider what is the most appropriate sentence.

12.  The reports and its contents are admitted by you.  Your parents separated when you were very young, just a small child, 5 years old, and despite you doing quite well at school in your primary years, in your secondary school you mixed with dubious peers and did not do well academically.  You then left school at age 15 in 2008 and in 2009 you began working as a kitchen apprentice in a Japanese restaurant.  Your operating officer there says you performed satisfactorily and a work placement is still reserved for you.  You live with your father, and at times during the course of your work you mixed with some dubious peers.

13.  I accept your counsel’s mitigation put forward that you were not one of the ones originally involved in the dispute between your group and the other group.  You were not a troublemaker in the bar or outside, you were not the first to start the assault, and it was not a pre-meditated assault.  Be that as it may, you were there seeing what your friends or the group were doing and were there to lend support and physically support them in assaulting the two victims despite your earlier passive behaviour. 

14.  Despite these two victims doing nothing at all to you, the other group doing nothing at all to you, you displayed a kind of violence which is intolerable and unacceptable. 

15.  What is most aggravating here is that despite Mr Chiu lying on the ground seemingly unconscious, you continued to lay into him with fists and kicks, particularly at the most vulnerable area of his body, which is the head, which as you can see resulted in very serious injuries.

16.  If you were an adult you would be receiving many, many years for this offence that you have committed.  You are 18 years of age, and being 18, I should first consider if there is any other sentence other than imprisonment which is appropriate for you.  I must balance what is both punitive and rehabilitative in view of your age. 

17.  Taking into account your background and what the officer of the Pik UK Correctional Institution says, you were clearly involved in this offence as a result of your undesirable peers’ influence.  You are otherwise of clear record and seem to have held down steady employment.

18.  Defendant, I have given anxious consideration to this matter and, in the circumstances, I consider that a Detention Centre Order is appropriate to sentence you for these two offences.  This should strengthen your law-abiding concept, and this will be, coupled with a period of disciplinary training and statutory supervision after your term, and will be beneficial to you.

19.  Defendant, I hope that you appreciate the opportunity that you have and treasure this chance so that when you come out of detention you will start anew.