HKSAR v. TSUI YIU NAM

DCCC30/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 30 OF 2010

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Reasons for Sentence

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1.  Mr Tsui Yiu-nam, the 1st defendant in the present case, pleaded guilty to a charge of conspiracy to wound with intent, contrary to sections 159A and 159C of the Crimes Ordinance, Cap.200, and section 17(a) of the Offences against the Person Ordinance, Cap.212, in that the defendant was guilty of conspiring with three other persons to unlawfully and maliciously wound three victims.

2.  The background to the offence was most unfortunate. It appeared that two groups of young people were involved in a dispute that was described as trivial in nature. This dispute led to the use of violence by one party on the other which finally resulted in the two groups of youngsters holding a meeting or peace talk to sort things out. This peace talk broke down, and the victims were attacked by another group including the 1st defendant.

3.  The attack involved use of fists and kicks as well as knives. The 1st defendant was amongst the few who were armed with knives during the attack. The three victims all were young people sustained injuries which could hardly be described as minor.

4.  The first victim, Wong Kwun-ping, was hospitalised for two days with serious multiple chop wounds. And according to the Admitted Facts up to the date of the preparation of the facts, this victim’s condition was not satisfactory in that there were some fractured deformity over his right thumb and index finger.

5.  The second victim, Mr Lam Hoi-po, had to be hospitalised for five days, again with some serious multiple chop wounds. The third victim, So Wei-zhi, was hospitalised for four days with the chop wounds over his chest and his left arm.

6.  The 1st defendant is a young man who was aged 19 years at the time of the offence. He also enjoyed a clear criminal record at the same time. But since the commission of the present offence, he was convicted of two further offences, and he was eventually sentenced to a period of detention in the rehabilitation centre for his last conviction for common assault on 21 January 2010.

7.  In view of the defendant’s young age, I adjourned sentence on the 1st defendant in order to obtain a number of reports including the rehabilitation centre, detention centre as well as training centre reports. These reports are ready today.

8.  I understand from Mr Chan, counsel for the 1st defendant, that the contents of the reports were all accepted. I have also read these reports. These reports are helpful in that I am able to get substantial information about the defendant’s person as well as his family.

9.  I understand from these reports that detention centre was not recommended because of medical reason. But he was considered suitable for either rehabilitation centre or training centre.

10.  The defendant through his counsel submitted a letter he wrote to express his remorse to this court. He indicated in the letter that he was very sorry for what he did in the present offence, and he was also very concerned over the wellbeing of his mother because of his commission of a serious offence lately.

11.  From all the information I gathered, the defendant appeared to me to be a young man who apparently had been lacking sufficient parental supervision. His behaviour worsened since the death of his father in the year 2007. The defendant’s mother was busy in her work because she had to make ends meet for her family. So this was obvious that the defendant was in total lack of supervision at home.

12.  Defendant managed to complete his Form 5 education in the year 2007. His academic performance was poor. He had no interest in his studies whatsoever. Defendant on the other hand appeared to be enjoying his association with some undesirable peers including triad members. His behaviour therefore understandably deteriorated significantly over the last two years. This eventually led to his commission of a number of offences within a short space of time towards the end of last year.

13.  Defendant’s mother was interviewed by the welfare officer of the Correctional Services Department. She appeared to be understanding and she knew why the defendant got himself into trouble. She accepted that because she was busy in her work leaving no time to supervise the 1st defendant, this gave a great opportunity to the 1st defendant for him to associate freely with some really bad elements.

14.  The mother was clearly disappointed. She was very upset. I can perfectly understand why she was upset. But she still appears to be very supportive to the defendant’s rehabilitation prospect. She takes the view that the defendant’s performance has improved since his detention in the rehabilitation centre. No doubt in her mind she hoped that the 1st defendant would benefit from his training in the rehabilitation centre and eventually he would reform himself.

15.  As I earlier said, the defendant was only 19 at the time of the present offence. He also had a clear record. But the offence he committed in the present case is extremely serious. Not only that violence was used, lethal weapons such as knives were also used on the victims who appeared to be unarmed.

16.  There is no evidence to suggest that all the assailants were armed with weapons. But clearly the defendant was amongst the few who had armed themselves with knives. I am sure that at that time the defendant clearly understood that when he was holding a knife in his hand that he could inflict very bad injuries on his victim or victims. There is no room to argue that it was a misunderstanding or that because he was attacked he put up a self-defence, and in the course of self-defence he used a knife.

17.  I find that this was clearly a premeditated attack, and the idea was to teach the other group of youngsters a lesson. Weapons were used. The 1st defendant was not acting alone. Serious injuries were caused to three victims and some of these injuries at the time of sentence could be viewed as perhaps permanent in nature. Even if these injuries do not cause permanent injuries, they were bad injuries. And this is why I say this is a very serious offence.

18.  Mr Chan on behalf of the 1st defendant invites this court to consider making a rehabilitation centre order. He also advances some reasons for that proposal. Amongst those reasons, defendant’s young age, his plea of guilty and his good performance in the rehabilitation appear to be the main ones.

19.  I accept that the defendant was young at that time. I am also aware that the defendant was a person of clear record at that time, and I am also alive to the fact that the defendant is now serving a sentence in rehabilitation centre and apparently he is doing quite well there. Last but not the least, I am also aware that the CSD reports recommended that he be sentenced to rehabilitation centre rather than a training centre although both places were considered to be suitable for defendant to be sentenced.

20.  I accept as a general rule that when sentencing a young offender, a sentencing court should give due consideration to the young offender’s age as well as his chances of rehabilitation. But young age and rehabilitation could not always prevail, especially when the offence is of such a serious nature that a deterrent sentence is called for.

21.  Hong Kong is a place of law and order, any person who chooses to use unlawful violence on other people should be condemned. And a message has to be passed out to the general public that if a person is prepared to use weapons to cause serious injuries on other people, then he may have to go to prison. The present offence discloses a situation where I think a deterrent and custodial sentence is clearly necessary.

22.  I agree that in the 1st defendant’s case imprisonment is really the last resort, and therefore I will not consider imprisonment. However, I do find it hard to consider imposing a rehabilitation centre order on the defendant for the present offence because, in my view, it would be a sentence which is way out of proportion to the gravity of the offence. If the 1st defendant was a mature adult, he would be looking at a starting point of 2½ years to 3 years’ imprisonment. With that in mind, I rule out the possibility of a rehabilitation centre order.

23.  I take the view that a period of training in a training centre on the other hand is the best sentencing option in the circumstances. By sentencing the 1st defendant to a training centre, it would mean that the 1st defendant’s loss of liberty would be for a longer period which can be viewed as deterrent. And at the same time a period of training in a training centre would provide opportunity to the 1st defendant to receive not only disciplinary training but also vocational training, and this is highly conducive to the defendant’s rehabilitation programme.

24.  In my judgment, a period of disciplinary training in a training centre would serve both purposes of imposing a deterrent sentence as well as a sentence which is rehabilitative in nature. I therefore sentence the defendant for the present offence to a training centre.

25.  One last word, Mr Tsui, the effect of a training centre order means clearly that you will have to be detained for a longer period. But from my point of view, it is the best opportunity for you to reform yourself. The maximum period of detention can be up to 3 years. But from my experience, it is very, very difficult to get a person detained for 3 years in a training centre. It is rare. The minimum period can be as less as 6 months. But of course again this is rare. The more common detention period would range between 9 months and 18 months.

26.  And on discharge, you will be subject to a period of supervision. If what you write in the letter is what you really mean, and you really feel sorry for what you did, and you really feel concerned over your mother or your brother’s welfare or wellbeing, then this is the best opportunity for you to think it over while you are in the training centre. And you can equip yourself with a lot of vocational skills there which will be helpful in your future career.

27.  If you behave yourself, you will be detained for a shorter period. So while I do not specify and I have no power to specify the time for your detention in a training centre, to a certain extent, you can contribute to how long you are going to be inside. I am sure your mother will miss you. I am sure you will miss her too. But missing someone is a lot better than losing someone.

28.  From my point of view, it is most fortunate that you get caught before you embark on more serious criminal activities. You could have killed these people. If these people are dead, you will lose the best part of your lifetime. You will stand to lose 20 or maybe 25 years. So with that in mind, I think if you are smart enough, you know what is best to you. Mixing with those people out there trying to be a hero is no good at all. Try to think about your mother. When you are in trouble, who is standing behind you to support you? Your mother and your brother, not your friends, so-called friends.

29.  So I think the best advice I can give you is this, try to be positive. Of course you are going to lose your liberty, but this is the price that you have to pay for your criminal act. But having paid that price, you will have all your liberty to do whatever you want. You can be a good man. You can be a very good son and good brother. Or, on the contrary, you can continue to try to be a hero in your triad gangs. I think you are the one to make that choice. You know what is best to you and I am sure this training centre order will provide you with the best opportunity to make that decision.