HKSAR v. CHOI YIU CHO AND ANOTHER

DCCC 1020/2024 & 5/2025 (Consolidated)

[2025] HKDC 768

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1020 OF 2024 & 5 OF 2025 (Consolidated)

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REASONS FOR SENTENCE

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Plea

1.  Upon the 1^st and 2^nd Defendants’ (“D1 and D2”)  guilty plea and admission of facts, D1 and D2 respectively convicted on Charges 1 to 4 and Charges 1 to 2.

Agreed facts

2.  On 24 September 2023 at around 7:25 am, Mr Kwan  (“PW1”), who was driving a private car along Waterloo Road, saw a black AUDI baring registration mark VV6809 (“V1”)  crashing into the back of a white TESLA baring registration mark YH****[1] (“V2”)  and further into the barriers at the junction of Waterloo Road and Nathan Road, Yau Ma Tei (“L1”)  (Charge 1: Conspiracy to wound with intent (against D1 and D2)  and Charge 3: Dangerous driving (against D1)).

3.  After the crash, V2 immediately left L1. D1 (who was wearing a black top)  alighted from the driver seat of V1 and D2 (who was wearing a red top)  alighted from the passenger seat of V1. D1 and D2 abandoned V1 and left L1.

4.  Meanwhile, another witness Mr Ng (“PW2”), while walking near L1, heard a loud bang and saw V1 crashing into the barriers at L1. PW2 did not see V1 crashing into V2, but he observed D1 and D2 alighting from V1.

5.  Afterwards, PW2 continued to head to work. When he was at Yau Ma Tei MTR station, he saw D1 and D2 again. He reported the case to the police and tailed D1 and D2 all the way to Prince Edward. He lost track of D1 and D2 at Sai Yeung Choi Street South near Bute Street.

6.  At around 7:50 am, police officers arrived L1. Upon search, the police seized from the front passenger seat of V1, a recycling bag containing: one 58 cm-long knife with a cover; one 46 cm-long cleaver with gauze wrapped on the handle; and one 20 cm-long extendable baton (49 cm-long after extension)  (Charge 2: Possession of offensive weapons in public place (against D1 and D2)).

7.  The police also seized from the trunk of V1 a set of licence plate marked WW2014 (including one yellow plate and one white plate).

8.  Other police officers conducted a search around D1 and D2’s last seen location. After viewing the CCTV of Yau Sing Building at No. 746 of Nathan Road, the police suspected that D1 and D2 had entered Yau Sing Building and therefore waited for them outside the Building.

9.  At around 8:45 am, PC16743 (“PW3”)  saw D1 and D2 leaving Yau Sing Building. PW3 successfully intercepted D1, but D2 escaped.

10.  PW3 then arrested D1 for “dangerous driving” and “possession of offensive weapons”. Under caution, D1 repeated that he drove the car and crashed it, but the knives and the baton were prepared by “Sai b”. PW3 further arrested D1 for “driving without a licence”. Under caution, D1 admitted that he did not have a driving licence and claimed that the police would not be able to find the car owner.

11.  At around 9:18 am, PC8860 (“PW4”)  saw D2 at No. 16 of Mong Kok Road (outside JCG Building)  and intercepted him. D2 told PW4 he would not run and would surrender. PW4 cautioned D2 for “possession of offensive weapons” and “taking conveyance without authority”. Under caution, D2 admitted that he was the passenger of the car; he and the driver received an order to chop people; he was responsible for preparing the knives and the baton to chop people; and he did not know about anything else. PW4 arrested D2. Under caution. D2 repeated that the driver drove him; he was only responsible for chopping people with knives; and he did not know about anything else.

12.  Later on the same day, D2 claimed to be feeling unwell and was sent to the hospital for treatment. The police granted him police bail. However, D2 did not report to police bail afterwards.

D1's driving licence

13.  The Certificate of Driving Licence Particulars showed that D1’s driving licence has expired since 27 July 2016 (Charge 4: Driving without a valid driving licence (against D1))  .

V1

14.  The registered owner of V1 was Mr Wong. Wong told the police that he simply purchased V1 for his elder brother Mr Tang. Wong also said that the licence plate VV2014 was his previous car’s licence plate and the police confirmed the same. The police located Tang and Tang admitted lending V1 to D1.

15.  On 30 October 2024, the police located D2 at Central Pier No. 6 and took him back to the police station.

Defendant’s background and mitigation

16.  D1 is now aged 37.  He is married with a child aged 7.  He has 5 sets with a total of 6 previous convictions, which are mostly drugs related offence.  His last conviction in 2018 is trafficking in dangerous drugs which he received 6 years’ imprisonment.  He is a recidivist. 

17.  Mr Cheung, counsel for D1, has these salient points in mitigation.  Having cited a few legal authorities, he suggested to the court to consider respectively 3 years and 6 months’ imprisonment for Charge 1, 15 months for Charge 2, 6 months for Charge 3 and 9 months for Charge 4.

18.  D2 is now aged 50.  His marital status is single.  Since 1991 up to 2019, he has 11 sets with a total of 20 previous convictions, with similar offences to Charge 1 and Charge 2.  His last conviction in 2019 is possession of an identity card relating to another person which he received 18 months’ imprisonment upon appeal.  D2 is a recidivist. 

19.  Mr Leung, counsel for D2, submitted that D2 suffered from depression and he also sustained injuries during his flee.  After clarification, D2 has depression before the offence and had he not attempted to be hired to attack, he would not have fled and sustained injuries.  Mr Leung accepted that those may not be accepted as a valid mitigating factor.  Having cited a few legal authorities, Mr Leung suggested to the court to consider respectively the starting point of 3 years’ imprisonment for Charge 1 and 12 months for Charge 2 and make all sentence concurrent.

Sentencing considerations

Charge 1

20.  As for Charge 1, the maximum sentence is life imprisonment.  It is common ground that the Court of Appeal had said that the usual range of sentence for wounding is between 3 to 12 years’ imprisonment.  And the facts of each case is different and the gravity of the offence would depend on the facts of a particular case. 

21.  Apart from the cases cited by counsel for D1 and D2, I have also considered the following cases: 香港特別行政區 訴 陳傑瑛[2], HKSAR v Gurung Tikaram[3], R v Fok Tin Yau[4] and R v Cheng Shu Wai[5].

22.  The aggravating features for Charge 1 includes: (1)  premeditated; (2)  more than one offender; (3)  weapons were ready.  I adopt the starting point of 3 years’ imprisonment for Charge 1.  D2 has similar offences and I enhance his starting point to 3 years and 3 months.  After giving 1/3 discount, D1 and D2 are sentenced to 2 years and 26 months’ imprisonment respectively.

Charge 2

23.  The maximum sentence for Charge 2 is 3 years’ imprisonment.  I have considered the following cases: Secretary for Justice v Liu Chi Yung [2007] 4 HKLRD 182 (12 months’ starting point for fruit knife), HKSAR v Thapa Kishan [2013] 2 HKC 524 (12 months’ starting point for possession of chopper outside bar). 

24.  As said before, it is obvious that D1 and D2 possessed the weapons with the intention to attack other people.  I adopt the starting point of 12 months’ imprisonment.  D2 has similar offences and I enhance his starting point to 15 months.  After giving 1/3 discount, D1 and D2 are sentenced to 8 months and 10 months’ imprisonment respectively.

Charge 3

25.  The maximum sentence for dangerous driving is 3 years’ imprisonment and a fine of level 4 ($25,000), in addition to driving disqualification on first such conviction of not less than 6 months.  I have considered the following case: 律政司司長 訴 朱詠妍 CAAR 5/2018.  The main concern of the Court is the culpability of the defendant’s dangerous driving and the seriousness of the consequences.

26.  The manner of D1’s driving was not only irresponsible, he drove the vehicle with intention to wound people.  Video footage show that D1 was chasing V2 in a busy road junction.  Not only that enhanced much risk to road users, D1’s V1 collided with the victim’s car, causing damage to victim’s car and public property.  I adopt the starting point of 12 months’ imprisonment and reduce it to 8 months’ imprisonment for his guilty plea.  I also disqualify D1 from driving for a period of 6 months with effect from the date of this sentence, in addition to driving improvement course (DIC), which is to be completed and passed 3 months before the expiry of the disqualification period. 

Charge 4

Driving without a valid driving licence

27.  Since this is D1’s first conviction, the maximum penalty for the offence of driving without a valid driving licence is a fine of $5,000 and imprisonment for 3 months.  I adopt a starting point of 9 weeks’ imprisonment, discounted to 6 weeks upon his plea of guilty.

Totality

Totality within the present proceedings

28.  The facts for Charge 1 and Charge 2 are related to the plan attack and the sentence should be made concurrent (sub-total 24 months).  I also order D1’s Charge 3 and Charge 4 be made concurrent (sub-total 8 months)  to avoid sentence being excessive, but consecutive to his Charge 1 and Charge 2.  As a result, the final sentence for D1 is 32 months’ imprisonment (and 6 months’ driving disqualification and driving improvement course), and 26 months’ imprisonment for D2.

Totality in relation to DCCC 943/2024

D1

29.  D1 was sentenced to 30 months’ imprisonment in the case of DCCC 943/2024, I shall also apply the principle of totality as follows.

30.  The overall sentence for the two cases must not be such as to have a crushing effect on D1 so that he will not be able to recover from the punishment.

31.  If the sentences of the two cases are allowed to run consecutively, D1 would be incarcerated for a total of 62 months, or 5 years and 2 months.  This sentence may be out of proportion to the overall criminality of the acts of D1, given the circumstances of the cases.

32.  Taking a step back, I will order that 18 months out of the present 32 months’ sentence to be served consecutively to the earlier 30 months’ sentence in DCCC 943/2024, the balance to be served concurrently. The driving disqualification period in both cases be also made concurrent.

33.  D1 is, therefore, to serve a total of 48 months’ imprisonment for the two cases.