HKSAR v. LUK WAI KIN

DCCC 457/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 457 OF 2016

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REASONS FOR SENTENCE

The defendant faces 1 charge of "Conspiracy to wound with intent" (Charge 1); 1 charge of "Possession of offensive weapons in a public place" (Charge 2); 1 charge of "Driving without a valid driving licence" (Charge 3); and 1 charge of "Using a motor vehicle without third party insurance" (Charge 4).

2.  He pleaded guilty to Charges 2, 3 and 4.  The prosecution accepted him pleading guilty to Charge 2 as an alternative to Charge 1.

Summary of Facts

Charge 2

3.  Mr. LEUNG (PW1) was as a security guard of a residential building situated at No.8 Chun Fai Terrace, Tai Hang ("the Building").

4.  About 11:25 a.m. on 6 January 2016, PW1 saw a private car MY 5871 ("V1") parking near the carpark entrance of the Building.  He saw a male (later identified as the defendant) sitting in the driver's seat and 3 other males (M1 to M3) in the rear passenger seats.  PW1 directed the defendant to move V1 to the designated waiting area outside the building entrance.  The defendant, however, drove V1 away instead.  PW1 did not pay much attention to the matter and resumed his work.

5.  Messrs. TANG, NG, FAN and TSANG (PWs 2 to 5) were drivers employed by a resident of the Building.  PW2 also saw V1 parking at the carpark entrance.  He noticed the driver of V1 wearing gloves; and 3 males (who appeared to be South Asians) sitting in the rear passenger seats.  PW2 saw V1 being driven away after PW1 approached its driver.

6.  About 11:30 a.m. on the same day, PW2 told his colleagues (including PWs 3 to 5) about the incident of V1.  During their conversation, V1 returned and parked near its previous location.

7.  Feeling suspicious, PWs 3 and 4 approached V1.  They saw the persons in the rear passenger seats holding/distributing some knife-like objects.  They then returned to the lobby to inform their colleagues.  They took some railings to block the road leading to the carpark.  At the same time, PW5 drove a motor car to block the driveway and alerted a security guard to call the Police.

8.  Suddenly, V1 reversed.  It bumped against the kerb and stopped.  The defendant and M1 to M3 alighted from V1 and fled.  They were all holding knife-like or hammer-like objects.  PWs 3 and 4 immediately boarded PW5's car and drove around to look for those males.  At one point, they saw M1 to M3 walking along Lai Tak Chuen Road, but lost sight of them later.

9.  Police officers later arrived at the Building.  They searched V1 and seized the following items :-

(i) a bunch of keys, including the ignition key of V1;

(ii) 3 hammers of "YONGXIN" brand (Exhibits P4, P8 and P11);

(iii) 2 brand new facemasks (Exhibit P5);

(iv) 2 gloves in red/white colour (Exhibits P7 and P9);

(v) 5 rolls of bandages (Exhibit P10);

(vi) 2 plastic knife sheaths (Exhibits P12 and P15);

(vii) 1 facemask (Exhibit P13); and

(viii) 1 pair of gloves in black/brown colour (Exhibit P17).

10.  Along the respective escape routes of the defendant and M1 to M3, police officers seized the following items :

(i) 1 plastic knife sheath (Exhibit P18) on the driveway near V1;

(ii) at the L2 level carpark of a building situated at No.23 Tai Hang Drive ("The Legend") :-

(a) 1 jacket with blood stain (Exhibit P19);

(b) 2 gloves with blood stain (Exhibits P20 and P22); and;

(c) 1 facemask with blood stain (Exhibit P21);

(iii) at the L3 level carpark of The Legend :-

(a) 2 knives (45 cm in length) of "Borgvogel" brand (Exhibits P23 and P24);

(b) 1 knife (45 cm in length) of "Borgvogel" brand with a plastic sheath (respectively Exhibits P25 and P26); and

(c) 1 hammer of "YONGXIN" brand (Exhibit P27);

(iv) 2 gloves (Exhibits P28 and P29) at the L4 level carpark of The Legend;

(v) 2 facemasks (Exhibits P30 and P31) outside Tak Chuen House of Lai Tak Tsuen; and

(vi) 2 gloves (Exhibits P32 and P33) and 1 facemask (Exhibit P34) at the Tai Hang Road public carpark.

11.  On 15 January 2016, DPC 58345 arrested the defendant in Hung Hom.  Under caution, he said "Really I owed someone money and could not make the repayment.  I was forced to act as a driver to drive the vehicle.  I did not know what had happened, and did not know all those people on the material day.  They brought me to Tai Hang.  When I saw them running away, so I ran away."

12.  In his video recorded interview, the defendant admitted helping his friend "Ah Ming" to drive in order to set off several thousand dollars in debt.  He described how he met up with M1 to M3 outside St. Paul's Hospital in the morning on 6 January 2016.  M1 drove V1 there and then asked him to drive to the Building.  The defendant denied knowledge of the articles seized from V1 and the purpose of going to the Building.

13.  In an identification parade held on 26 January 2016, PW4 identified the defendant as the driver of V1 whom he saw on 6 January 2016.

14.  Forensic scientists of the Government Laboratory confirmed that the DNA obtained from the bloodstains on the jacket (Exhibit P19), the glove (Exhibit P20) and the facemask (Exhibit P21) could all have originated from the defendant.

Charges 3 and 4

15.  According to the Transport Department's records, on 6 January 2016, the defendant did not have a valid driving licence.  Hence, there was no valid third party insurance coverage when he drove V1 on that day.

Mitigation

16. The defendant is now 23 and has a clear record. According to the Detention Centre Suitability Report, he did not complete F.3 and had taken up a number jobs after leaving school. At the time of the offences, the defendant worked in a finance company earning $13,000 per month. He was dismissed in June 2016 when this case was reported by the media.

17. In mitigation, defence counsel Mr. LO submitted that as confessed by the defendant to the Police, he owed money to other people and was coerced to be a driver. Mr. LO explained that when the defendant was given gloves to wear, he had some suspicion that some activities might take place, but he thought only some scouting work would be involved. He did not know weapons were inside the car until he was told to drive back to the Building. Mr. LO acknowledged that the defendant should have left at that point, but he foolishly thought he could offset his debt by completing the task. Furthermore, the defendant held only 1 knife and he injured his finger whilst someone was passing him the knife, which explains why certain exhibits had his bloodstains on them. Mr. LO stressed that the defendant had no intention to cause injuries to any person, which is confirmed by the prosecution's decision to accept his guilty plea to Charge 2 and not to proceed with Charge 1.

18. Finally, Mr. LO submitted that the defendant just wanted to earn more money to support his family and to enable his elder brother to complete his university education. A bundle of mitigation documents (including letters from the defendant's mother and fiancée) was placed before me; their contents are duly noted. I am aware of the serious traffic accident of the defendant's father which took place in the mainland in late December 2016 and the birth of the defendant's daughter in October 2016.

19. Time after time, the court has expressed in very clear terms that being in financial difficultyis no mitigating factor for committing a crime. To some extent, I understand the defendant's fear and sense of helplessness when having to face his so-called "creditors". I know it is easier said than done, but there must be proper ways for the defendant to deal with his debts. Being coerced by a creditor is not an excuse to resort to criminal activities.

Sentence

Charge 2

20. This is no doubt a serious offence, so serious that it carries a mandatory sentence of some form of incarceration. The defendant was in possession of 4 hammers and 3 knives. I accept that he might not have intended to use any of those weapons to cause harm to anyone. The fact remains that he drove 3 persons, who clearly intended to use those weapons, to a specific location. Furthermore, those weapons could easily cause lethal injuries. Hence, I adopt a starting point of 18 months' imprisonment. With the guilty plea, the sentence is reduced to 12 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 12 months' imprisonment.

Charge 3

21. For a 1^st conviction of this offence, the maximum penalty is a fine of $5,000 and imprisonment for 3 months. I will impose a fine of $3,000 for this charge.

Charge 4

22. Not being licensed to operate a motor vehicle, the defendant was not only foolish in driving one on the road; he was reckless in taking on M1 to M3 as his passengers (even though they are his fellow culprits). He has also deprived all potential victims, especially residents in vicinity of the Building, of adequate financial protection in the event of a traffic accident. An immediate custodial sentence is required for this charge. I adopt 3 months' imprisonment[1] as the starting point. With the guilty plea, the sentence is reduced to 2 months.

23. The defendant's unlicensed driving without the adequate protection of insurance renders him a serious threat and danger to other road users. Hence, for Charge 4, I also make a disqualification order of 2 years[2], which shall run from the date of conviction[3].

Overall Sentence

24. Having considered the totality principle, I order the sentences for Charges 2 and 4 to run concurrently; thereby arriving at a total prison term of 12 months for both charges.