HKSAR v. TSANG YU YEUNG

DCCC 423/2021

[2023] HKDC 56

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 423 OF 2021

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REASONS FOR SENTENCE

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1.  Mr Tsang pleaded guilty before me to two charges, namely one charge of Common assault, contrary to Common Law and punishable under section 40 of the Offences against the Person Ordinance, Cap 212 (Charge 1); and one charge of Wounding with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap 212 (Charge 2).

2.  Particulars of Charge 1 are that he, on 27 September 2020, near Mui Wo Football Pitch, Ngan Shu Street, Mui Wo, New Territories, in Hong Kong, assaulted Bennell Riley.

3.  Particulars of Charge 2 are that he, on the same date, outside Refuse Collection Point, Ngan Shu Street, Mui Wo, New Territories, in Hong Kong, unlawfully and maliciously wounded Bennell Riley with intent to do him grievous bodily harm.

Facts admitted by Mr Tsang

4.  On 27 September 2020, at about 0100 hours, Riley Bennell (male, 15)  (PW1), Sebastien Bennell (male, 17)  (PW2), Max Alexander Element (male, 17)  (PW3)  and Zachary Ford (“Ford”), rode along a bike path towards Mui Wo Pier in Mui Wo (“the Pier”).

5.  PW2 picked up a plastic bucket, put some cattle faeces into it.  When PW2 saw Mr Tsang approaching them on a bicycle, he threw the faeces at him, thinking it was funny to do so.  The faeces landed on Mr Tsang’s neck and shoulder.

6.  Mr Tsang was angered and he stopped at the scene.  PW2 rode towards the Pier while his peers stayed behind.  A dispute arose between the parties.  Mr Tsang got back on his bicycle and headed towards the Pier.

7.  At about 1720 hours the same day, PW1 left his residence and was on his way to meet PW2 & PW3.  When PW1 was riding along Ngan Shu Street, near Mui Wo Football Pitch, he saw Mr Tsang riding ahead of him.

8.  After Mr Tsang noticed the presence of PW1, he rode quickly towards PW1.  PW1 tried to veer away; but Mr Tsang crashed into him.  PW1 fell off from his bicycle and his right knee was injured.

9.  The two parties shouted at each other.  Mr Tsang then punched PW1 on the right side of the nose, and pushed PW1 against a parked car.  PW1 grasped Mr Tsang’s shoulders in order to prevent Mr Tsang from biting PW1’s shoulder. Suddenly, Mr Tsang got back on his bicycle and left. (Charge 1)

10.  PW1 then went to meet PW2 & PW3 near a restaurant in Mui Wo as arranged.  PW1 told them what happened.  The three of them went about to look for Mr Tsang.  Not long, they spotted Mr Tsang on a bicycle near the Refuse Collection Point at Ngan Shu Street.

11.  Mr Tsang got off his bicycle and shouted at PW1 to 3.  Before long, Mr Tsang pushed PW1 onto the ground, and stabbed PW1 with a pointed object (about 4-5 cm long).  PW2 then pushed Mr Tsang to the ground. (Charge 2)

12.  PW1 to 3 soon got on their bicycles and left the scene quickly.

13.  Later the same day, PW1 attended Mui Wo General Out-patient Clinic, before he was transferred to North Lantau Hospital, and then to Princess Margaret Hospital.  The case was reported to the police.

14.  At about 1800 hours the same day.  Mr Tsang was arrested.  In a subsequent cautioned VRI, in the presence of an appropriate adult (Mr Tsang senior), Mr Tsang stated:-

(a)  On the night before this incident, he was assaulted by 3 to 4 foreign young persons; one of them threw faeces at him;

(b)  Around 3 pm of the day of incident, two foreign young persons assaulted him, and chased after him for 10 to 15 minutes; and

(c)  Around 5:30 pm on the same day, he saw a fight among some foreign young persons; he was also assaulted by them.

15.  PW1 attended hospitals on 27 September 2020 and was found to have three small stab wounds over his back with size of less than 0.5 cm each.  Chest X-ray revealed that PW1 suffered from left pneumothorax, while computed tomography revealed that he had small left pneumothorax with left chest drain in-situ, small right haemopneumothorax , and right kidney laceration with thin perirenal haemotoma with no contrast extravasation detected.  PW1 was transferred to Intensive Care Unit for a day, before he was transferred to Surgical General Ward.  On 1 October 2020, PW1 was discharged from hospital.

16.  Mr Tsang attended Mui Wo General Out-patient Clinic and was found to suffer from multiple injuries, including:-

(a)  Left neck (trapezius): superficial abrasions, surrounding erythema and mild tenderness;

(b)  Left elbow: superficial abrasion and mild tenderness;

(c)  Erythema over right arm biceps and forearms;

(d)  Right elbow: mild tenderness over olecranon process;

(e)  Multiple superficial abrasion over fingers (right middle finger, right little finger)  and right hand; and

(f)  Erythema over knuckles of left hand.

17.  Mr Tsang now admits that he wounded PW1 with intent to do him grievous bodily harm under Charge 2.

Criminal record

18.  Mr Tsang has two previous convictions both acquired after the present offences.

Antecedents

19.  Mr Tsang is aged 28 (26 at the time of the offences), educated to F6 level, was a construction site worker.  He lives with his father in Mui Wo.

Mitigation

20.  Mr But Sun Wai of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Tsang.  The following is a summary of the mitigation submissions.

21.  It was submitted that the offences were committed because of serious provocation.

22.  Mr Tsang is single.  He resides with his father (in his 60s).  He had a clear record as at the date of the present offences.  The two convictions on his criminal record relate to offences committed in 2022.

23.  The crucial witnesses are not locals and might not be available at trial.  There was also no admission from Mr Tsang.  Even so, Mr Tsang demonstrated his genuine remorse by pleading guilty.  It was submitted this remorse carried extra weight.

24.  Mr Tsang is a mental patient.  A copy memorandum under the hand of Dr Albert Chung, a Psychiatrist, dated 4 February 2021, was submitted.

25.  By referring to the case of HKSAR v Fung Sai Keung [2018] HKDC 293 (DCCC 963/2017), Mr But submitted that:-

(a)  There are no tariff guidelines for the offence of wounding with intent; each case will depend on its own facts;

(b)  Provocation and reaction to another’s aggression, though no defences to wounding, may have an impact upon sentence;

(c)  In passing sentence regarding a charge such as wounding under section 17 of the Ordinance, the court must look at the matter from all angles; and

(d)  Essentially, mentally disordered offenders, whether or not the disorder has been the root cause of the offence, are approached on the basis that the law, where possible, should facilitate treatment in hospital.

26.  Mr But urged the court to call for reports in accordance with section 46 of the Mental Health Ordinance, Cap 136, before sentence.

Two psychiatric reports

27.  I called for two psychiatric reports on Mr Tsang under section 46 of Cap 136.  The reports came back.  The two psychiatrists had almost the same conclusion about Mr Tsang: he suffers from schizophrenia with history of polysubstance abuse; his mental state/condition remains settled with treatment/remained stable during his remand at Siu Lam Psychiatric Centre; he does not require inpatient treatment at this juncture; outpatient follow-up for managing/monitoring his condition [is considered sufficient].

Further mitigation in light of the two psychiatric reports

28.  Mr But further submitted that if this case had been dealt with earlier and at the same time as the AOABH case which was sentenced on 19 July 2022 by way of a Hospital Order for 3 months, Mr Tsang would have benefited for he would have been given the same punishment.

29.  Mr But submitted on behalf of Mr Tsang two mitigation letters in Chinese written respectively by Mr Tsang’s father and the Chairman of the Mui Wo Rural Committee.  The contents are generally that Mr Tsang had participated in voluntary work and turned wayward only because he mixed with the wrong peers. Both writers ask for a lenient sentence for Mr Tsang.

Sentence

30.  As a result of the two psychiatric reports, I will not sentence Mr Tsang to detention under a Hospital Order.

31.  The maximum sentence for common assault is one year’s imprisonment. There is no sentencing tariff.  In this case and under Charge 1, PW1 suffered an injury to the right knee, a punch to the nose, and he was pushed against a parked car.  I am of the view that an initial starting point of 4 months for Mr Tsang might be appropriate subject to any mitigation that I consider applicable (see below).

32.  The maximum sentence for wounding with intent is life imprisonment. There are no tariff guidelines for the offence.  The range of sentences for this type of offence is 3 to 12 years’ imprisonment, but everything would depend heavily on the particular facts of each case (see HKSAR v Tse Hok Lam, CACC 85/2005).

33.  In R v Goodwin [1999] 2 Cr App R (S), it was said that the use of a weapon would aggravate the offence.

34.  Provocation and reaction to another’s aggression, though not defences to wounding, may have an impact upon sentence: HKSAR v Yuen Wai Kui, CACC 280/2004.

35.  There is no evidence that Mr Tsang was being affected in his action by any mental illness at the time of either of the offences.  I therefore do not regard he was so affected.

36.  The so-called provocation took place at about 0100 hours on the subject day.  The common assault occurred at about 1720 hours ie more than 16 hours thereafter.  It can hardly be said that the assault was a reaction to the earlier provocative conduct on the part of PW2, who was not even the victim of the common assault and who was not at the scene of this offence.  The victim PW1’s part in the earlier saga involving the provocative conduct of PW2 was that he (PW1)  was in the vicinity and was a member of the party (consisting only of PW1, PW3 and Ford)  who had a consequential dispute with Mr Tsang after PW2 had fled the scene.  The common assault looked more like a revenge attack rather than a reaction to provocation.

37.  After the common assault, PW1 and Mr Tsang parted company.  PW1 then went to meet PW2 and PW3 as previously arranged.  They then went looking for Mr Tsang.  In the vicinity of the scene of the earlier common assault, they found Mr Tsang.  Mr Tsang shouted at them and before long, he pushed PW1 to the ground and stabbed him with a short but pointed object.  This was the subject matter of Charge 2.  PW1 was sent to hospital with small stab wounds, small pneumothorax and small haemopneumothorax and some kidney injuries.  PW1 stayed in hospital for 5 days.

38.  Mr Tsang himself sustained some superficial abrasions, erythema and mild tenderness to his neck and the upper limbs.

39.  I take into account the extent of the injuries suffered by PW1.  I adopt a starting point of 3 years and 3 months’ imprisonment for Charge 2 before I consider mitigation.

40.  I note that the whole incident arose from the misbehavior of PW2 whom Mr Tsang might have perceived as being in a group with the other youths of which PW1 was a member – a kind of transferred malice on the part of Mr Tsang, if you will.  This might be a relevant factor as far as Charge 1 is concerned; however, under Charge 2, whatever mitigating effect this might have is offset by the aggravating factor of the use of a weapon.

41.  As a result of this foregoing factor, I lower the starting point of Charge 1 to one of 3 months’ imprisonment.

42.  Mr Tsang pleaded guilty to the charges in good time; he shall be entitled to the full 1/3 discount.  At the time of the offences, Mr Tsang had a clear record.  I will give him a small extra credit after the 1/3 discount in respect of both charges: in the case of Charge 1, half a month; and in the case of Charge 2, one month.  There are no other mitigating factors of weight to justify any further reduction.

43.  The offences subject of Charges 1 and 2 occurred in close proximity to one another as to time and place.  The victims of both are one and the same person.  In principle and also on the ground of totality, I shall order the sentences to run concurrently with one another.

44.  For completeness, I would not have sentenced Mr Tsang to detention under a Hospital Order for 3 months should I be sentencing Mr Tsang also for the AOABH offence in July of 2022.

(Mr Tsang, please stand)

45.  For Charge 1, the sentence is one month and 15 days’ imprisonment.

46.  For Charge 2, the sentence is 2 years and 1 month’s imprisonment.

47.  I order that the sentences are to be served concurrently.