HKSAR v. LINK KWOKHUNG AND ANOTHER

DCCC 108/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 108 OF 2015

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REASONS FOR SENTENCE
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1.  D1 and D2 were charged with one single count of causing grievous bodily harm with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212.

2.  They both pleaded guilty to the charge and were convicted after their agreement to the Amended Summary of Facts.

The facts

3.  D1 and D2 were related.  D1 is the maternal uncle of D2 and D2 being the nephew of D1.  The victim in this case, PW1 and D1 were fellow taxi drivers.

4.  At the material time of the offence, they parked their taxis and stayed at the junction of Yee Shing Street and Yee Shun Street, Chai Wan, pending the change of duty shift.

5.  On 15 June 2014 at about 1700 hours, D1 had a verbal dispute with a police officer who carried out traffic and parking control duty.  PW1 then asked D1 not to cause trouble with the police at the vicinity.  As a result, PW1 and D1 entered into a heated argument.

6.  D1 had rushed towards PW1 but was stopped by other fellow taxi drivers. In the course of the heated argument, D1 made a phone call to D2 and said to him that he had to beat PW1 by today.  Later, PW1 walked to the opposite side of the road.

7.  About 10 minutes later, D2 and another male (“WP”), arrived at the vicinity by a private vehicle.  They alighted from the vehicle and then they hit PW1’s abdomen and back and clutched his neck from behind for about 30 seconds.

8.  After D2 and WP stopped and fled from the scene, PW1 then took out his mobile phone and reported the matter to the police.  Suddenly, D1 rushed forward and struck PW1 three to four times on his head and neck.

9.  The police arrived at the scene and arrested D1 immediately.

10.  One month later, on 15 July 2014, D2 surrendered to the police. The defendant admitted his role in the attack under caution.  He told the police that he was told by his uncle that he was assaulted by another person and then he arrived at the location with his friend named “Ah Hung”.

11.  Upon medical examination, PW1 had sustained serious injuries including fractured three right ribs, seventh to ninth ribs, erythema over right side of the face, and tenderness over right anterior lower chest.  Eight days’ sick leave was granted to PW1.

Criminal record and antecedents of the defendants

12.  D1 is now aged 52 and he had received secondary education.  He has a clear record.  He has been a taxi driver for about 10 years since 2004.  Before that, he has been working as an office worker as well as a computer worker.  D1 is said to be suffering from diabetes for about 10 years, requiring long‑term medication and also drug injections.  D1 lives with his mother and his nephew, D2, in Chai Wan.

13.  D2 is aged 36.  He had studied Form 3 level of education in Hong Kong and he was a supervisor or project manager of a construction company at the time of the offence.  D2 had one criminal record in 1998.  He was convicted in the High Court for two offences of Trafficking in Dangerous Drugs, for which he received 14 years’ imprisonment.  He was discharged from the prison in 2006. D2 is married and he also has a son.  He lives together with D1, his uncle, and his grandmother in the same address in Chai Wan.

Mitigations

14.  In mitigation, D1’s counsel, Ms Yeung, has stressed the fact that D1 is a person of hitherto good character, that the commission of the present offence is totally out of his character, and also to some extent, D1 was provoked or verbally abused by PW1 during the argument.  Ms Yeung also submitted to the court for consideration two letters written by the taxi company’s owner and also the manager of the taxi company.  Both letters spoke to the fact that D1 was a man of good nature and character, that he was a responsible taxi driver, and he had been traumatised by the present offence and felt very remorseful.  They all urged the court to pass a lenient sentence.

15.  As to D2’s counsel, Mr Mohammed, he prayed in aid the fact that D2 had pleaded guilty to the offence and was remorseful.  Mr Mohammed stressed that although D2 had a previous serious record of Trafficking in Dangerous Drugs, it was not similar to the present offence.  He also informed the court that since D2’s release from prison in 2006, he had already reformed himself, walking in the right path of his life and secured steady employment and received praises from his supervisors.  In support of that, Mr Mohammed submitted to court letters written by D2’s employer.

16.  Mr Mohammed also told the court that D2 had been told by his uncle D1 over the phone that in fact D1 had already been beaten up.  Not knowing the real situation, and because of his concern for his uncle, to whom he has a special relationship, foolishly, D2 decided to follow the instruction of D1.  Because he happened to be dining with his friend “Ah Hung” together so they two boarded the vehicle and went to the offence location and once they alighted from the vehicle, started to assault PW1.

17.  More importantly, Mr Mohammed submitted to the court a letter which was written by PW1 himself.  The court has already referred this letter to the prosecution to verify the content and I was informed that it was really written by PW1 himself.  All in all, PW1 informed the court that he had already forgiven the two defendants and he asked the court to give them the opportunity to reform themselves and asked the court to be as lenient as possible.

18.  In particular, and it is more relevant to the role committed by D2, PW1 told the court that although he remembered correctly that D2 had taken part in the assault, the one who had beaten him most was WP and D2 had in fact pulled away WP and therefore stopping him from further assaulting him.

19.  Mr Mohammed also pointed out that the grandmother of D2 is now already aged 85 and she was very worried about the present incident and what would happen to her son and also her grandson.

20.  Also, there is the family circumstances which have been introduced by Mr Mohammed about the depression suffered by D2’s sister, and also a cousin of D2 who is in need of the special care and supervision of D2.  All in all, Mr Mohammed asked the court to be as lenient as possible and to consider the facts of this case and the role played by D2.

Sentencing considerations

21.  To begin with, I should start by pointing out that there are no sentencing guidelines for the offence of wounding with intent.  In Secretary for Justice v Hung Kar Chun [2011] 1 HKLRD 1083, the Court of Appeal has established a range of 3 to 12 years’ imprisonment for this type of offence, but it should be also remembered that the range of 3 to 12 years is not a sentencing tariff and the court therefore is not obliged to impose 3 years’ imprisonment as the minimum term.  (see HKSAR v Wong Luk Sau [2013] 2 HKLRD 201)

22.  For the offence of wounding with intent or causing GBH with intent, the circumstances of offence and the background of the offenders will be different from case to case and therefore other decided cases are often of limited reference value.

23.  In this case, there is no doubt that there were aggravating features. According to what I have heard, there was no previous grudge between D1 and PW1.  It is true that on the date in question they had a quarrel with each other over the fact that D1 was not satisfied with PW1 in that he accused D1 of causing trouble with the police.

24.  Ms Yeung, acting on behalf of D1, had suggested that to some extent, D1 was provoked by what had been said by PW1 but the fact remains that it was confined to altercation and there was no bodily contact between the two before D1 had made the decision to summon the assistance of his nephew, D2, and even other persons such as WP to come to the location and beat up PW1.  It seems to me that D2, out of his loyalty for his uncle, would just blindly follow the order of D1 and instead of asking D1 to calm down or call the police for assistance, he just came to the location together with his friend “Ah Hung”, and without saying anything, rushed forward and attacked PW1.

25.  The injuries according to the medical report showed that PW1 has sustained serious injuries including three fractured right ribs and it is also borne out by the fact that PW1 was given eight days’ sick leave.  At the same time, there are some mitigations, especially in the case of D2, that PW1 has confirmed in his letter to the court that although he had taken part in the assault, the most aggressive attack on PW1 was in fact conducted by WP.

26.  Having said that, one must however bear in mind that this is a jointly-charged offence charging D1, D2 and WP together and thus in law, both defendants have to be responsible for the fierce attack by WP on PW1.  Also, the court cannot overlook the fact that there must be a degree of premeditation involved in this attack on PW1 in the sense that D2 and WP were summoned by D1 by phone to come to the scene to attack PW1.

27.  However in D2’s case, I also have to acknowledge the fact that he surrendered to the police voluntarily, albeit that it was only one month after the offence took place.

28.  As serious as the attack on PW1 is, from the letter I have read from PW1, I can gather that he has fully recovered from the injuries.

29.  Having considered the facts of the present case, the background of D1 and also D2, I consider that a period of immediate custodial sentence is inevitable.

30.  The court has, of course, sympathy for the family circumstances of both defendants.  Especially in D2’s case, he is the sole breadwinner of the family and he also has his own family and also has to support his own parents as well as the grandmother.  However, both defendants are mature men and they should think twice before committing an offence like this.  The court can never tolerate people to take the matter into their own hands.  If there is any dispute, this should only be reported to the police and those who break the law and attack people using violence will have to pay the price dearly.  Especially in D2’s case, he had already about 10 years’ time to learn from his mistake in the past, and it is regrettable that he should be still so hot-tempered and committed the offence just at the instigation of D1.  I cannot really reduce the sentence because of their family circumstances.

31.  For the above reasons, I will impose the sentences as follows.  I consider that in D1’s case, the appropriate starting point is 2 years and 3 months, i.e. 27 months.  Because of his plea of guilty.  D1 is entitled to a full one-third deduction, which is the only mitigating factor in this case. D1 was the prime mover and the instigator of the offence.  In the end, he will receive a sentence of 18 months’ imprisonment.

32.  D2, because of his lesser role in this offence and because of the mitigation put forward, I shall adopt a somewhat lesser sentence and that is 2 years as starting point.  Because of his plea, he is also entitled to a full one-third discount.  His sentence is therefore reduced to 16 months.  Because he has voluntarily surrendered to the police, I will therefore reduce his sentence further by 1 month.  D2 will therefore receive a sentence of 15 months’ imprisonment.