HKSAR v. MAK SHING HEI AND OTHERS

DCCC 1044/2020

[2021] HKDC 1125

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1044 OF 2020

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REASONS FOR SENTENCE

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1.  On 20 August 2021, the 2^nd and 4^th defendants pleaded guilty before me for the offence of Wounding with Intent, admitted the summary of facts, and they are duly convicted.

SUMMARY OF FACTS

2.  On 16 May 2020, Prosecution Witness 1 (“PW1”)  Lam Hung Chung, a 15-year-old student, went to an amusement game centre at Golden Era Plaza, Mongkok with his friends for entertainment.  At 9:44 p.m., when PW1 and his friends were about to exchange gaming tokens, PW1 was grabbed by several persons (later known as the 1^st to 7^th defendants)  from behind and was being punched and kicked by all of them.  PW1 later fell on the floor.  The 7^th defendant took a fire extinguisher to hit PW1, he then lost consciousness.  Shortly thereafter, the 1^st to 7^th defendants left the game centre.

3.  PW1 and his friends did not acquaint with any of the defendants in this case, nor did they have any grudges with the defendants.

Injuries of PW1

4.  As a result of the attack, PW1 sustained bilateral temporal and parietal scalp haematoma, abrasion on right upper limb and multiple face abrasion.  CT scan showed splenic laceration with shattered spleen with active bleeding.  Clinical diagnosis was trauma.  Upon referral to ICU, he underwent emergency operation to remove the spleen on 17 May 2020.  Haemotoma was also found on his left kidney.  A number of operations had been performed.  He was later discharged on 8 June 2020.

5.  PW1 suffered from a temporary loss of memory after the assault until late August 2020.  He requires long term medication and regular follow-up treatments.

6.  The CCTV at the game centre captured the assault from 21:44:11:-

(a)  The 7^th defendant led the 1^st to 6^th defendants to rush into the game centre;

(b)  the 2^nd, 5^th and 7^th defendants grabbed PW1;

(c)  the 1^st to 7^th defendants assaulted PW1 with punches, elbow attacks and kicks;

(d)  the 7^th defendant grabbed a yellow plastic signboard to hit PW1 for 6 times;

(e)  the 1^st defendant also used the plastic signboard to hit PW1;

(f)  the 7^th defendant grabbed a red fire extinguisher to hit PW1 thrice, PW1 lost consciousness and laid on the floor;

(g)  the 7^th defendant threw the fire extinguisher towards PW1;

(h)  the 1^st to 7^th defendants kept kicking PW1 after he was lying on the floor.

7.  CCTV of a herbal tea store at Temple Street, Mongkok, captured that on 16 May 2020 from 22:51:12 to 23:27:31, the 1^st to 7^th defendants attended the same for gathering.  Their faces and attire had been captured.

8.  Police later located the 2^nd, 4^th and some other defendants and arrested them on 28 May 2020.  Upon caution:-

(a)  the 2^nd defendant admitted that it was the 7^th defendant who asked him to go up to the game centre;

(b)  the 4^th defendant admitted the 7^th defendant was the one who had beaten PW1 heavily, he just rode on the 7^th defendant’s acts.

9.  In the cautioned VRI, the 2^nd and the 4^th defendants admitted, inter alia, that:-

(a)  At the material time, they were leaving the game centre;

(b)  the 5^th defendant told them PW1 previously had grudges with him;

(c)  the 7^th defendant initiated the attack on PW1;

(d)  upon being shown the CCTV captured stills, the 2^nd and 4^th defendants positively identified themselves inside the game centre assaulting PW1;

(e)  they all have assaulted PW1 by punches and kicks, but the 7^th defendant is the one who used plastic signboard and fire extinguisher to hit PW1;

(f)  the attack lasted for a few minutes.

RECORD

10.  Both the 2^nd and 4^th defendants have clear record.

MITIGATION (the 2^nd defendant)

11.  The counsel for the 2^nd defendant submitted that the 2^nd defendant blames himself for his commission of the present offence due to foolishness and his blind faith to friends.  At the beginning, the assault on the victim were merely punches and kicks, and that was the magnitude and degree of violence he had intended, thinking that the harm to the victim would not be serious.  When the 7^th defendant started using a fire extinguisher to hit the victim, he was extremely foolish not to have stopped.  He is deeply remorseful.  He was fully co-operative with the police, making full and frank admissions upon arrest and under caution.  He pleads guilty at the first opportunity and urges the court to give him full credit in sentencing.

The 2^nd defendant’s background

12.  He was born in the Mainland and came to Hong Kong in 2015 to settle.  He is now 20 years old.  He lives with his parents in a public housing estate.  His father is a vegetable transportation worker, his mother used to be a construction site worker is now a housewife.  He was educated up to Form 3 and at the time of the offence, he was attending the 2^nd year of the 2 years course of catering service at Shine Skill Centre of Vocational Training Centre.  He is highly praised by his parents and aunties, his instructor, student guidance officer and social worker at the Skill Centre as evidenced in their letter for mitigation now before the court.  His counsel highlights, as detailed in the Educational Psychologist’s Report dated 16 June 2016, the 2^nd defendant was assessed to be significantly deficient in most of the literacy (reading and writing)  abilities as tested, comparatively of low IQ, low adaptive functioning and suffering from mild speech handicap.  His counsel submitted that these disabilities can be regarded as mental illness, namely his foolishness and blind loyalty to friends, which played a part in the commission of the offence.

MITIGATION (the 4^th defendant)

13.  The counsel for the 4^th defendant submitted that the 4^th defendant went to the game centre with the 3^rd defendant and the group.  He did not know the victim and was unclear what had happened at the material time.  Hoping for more recognition from friends, he went forward to kick the victim after the group attacked him.  As he frankly admitted under caution, he just rode on other’s acts.  He could never have imagined that the harm to the victim would have been so serious, nor had he realized that he could be facing such a serious offence.  Yet he is willing to shoulder the responsibility and to admit his own wrong.  He feels very sorry for the victim and regrets deeply knowing how much worry and sadness his mother has had for him.  He promised that he would be careful and not to commit any offence and hope he could try his best to be a filial son and to take care of his mother in future.  He submitted 2 letters for mitigation, one from himself, the other from his mother.

The 4^th defendant’s background

14.  He was born in the Mainland, the only son of his parents.  He and his mother came to Hong Kong in 2007 for family re-union with his father.  His parents divorced in 2015 and he has been staying with his mother in a public housing unit.  His mother suffered from breast cancer in 2012, after operation, still requires follow-up treatment.  She also suffers from depression due to her health and marital problems, and requires follow-up consultation.  He was assessed to have mild grade mental retardation and dyslexia in 2008, therefore he was arranged to study in a special school until Form 4.  He had fair performance and no behavioural problems in school.  He had worked in logistic and real estate industries, but failed in his qualifying examinations.  Prior to commission of the present offence, he was working part-time with a real estate company earning about $6,000 per month.

15.  Wounding with intent is a very serious offence punishable by life imprisonment.  In the District Court, he can be sentenced up to 7 years’ imprisonment.  The victim in this case sustained very serious injuries as a result of the attack.  The attack from the beginning to end was recorded by the CCTV cameras inside the game centre, one can see how ruthless, brutal and merciless the attack on the victim was.

16.  Paragraph 3 of the Summary of Facts sets out the injuries and the condition of the victim, but does not fully reflect how serious the condition the victim was in after he was sent to the hospital.  There are 2 medical reports on the victim, one from the Department of Accident & Emergency dated 10 July 2020, the other from the Department of Paediatrics dated 2 September 2020 of the Queen Elizabeth Hospital.  Dr. Hsu of Department of Paediatrics gave a very detail account of how serious and critical the condition of the victim was after he was admitted into the hospital.  According to Dr. Hsu’s medical report, the injurious sustained by PW1 were life threatening and resuscitation was required and in view of his critical condition, his spleen was shattered and active bleeding, splenectomy was performed.  He was hospitalised for 23 days before he was fit for discharge.  Owing to an immunocompromised state after splenectomy, additional vaccinations and long term follow up with lifelong antibiotic prophylaxis would be necessary.  According to the Impact Statement taken by the police from PW1, the injuries he sustained seriously affected his day to day living.  He has recurring headache and dizziness, feels tire all the time for his spleen had been removed, easily short of breath if walks quickly, and cannot do any exercise.  He took up employment in December 2020 to work in a godown but had to quit his job after 3 days for he could not handle the manual work.  The impact will have lasting effect on his future well-being, his choice of work and quality of life.  After reading Dr. Hsu’s report, I can only say the victim is lucky to be alive and would have been dead if not because of the tremendous efforts of the teams of doctor in saving his life.

17.  In view of the 2^nd defendant’s young age and a first offender, and the 4^th defendant although he is 23 years old, also a first offender, is still eligible to receive training in Detention Centre, I adjourned sentencing these 2 defendants and called for reports from the Correctional Services Department.

18.  I duly received the reports.  The 2^nd defendant is found mentally and physically fit for detention in a Detention Centre or a Training Centre, and he is considered more suitable for detention in a Detention Centre. The 4^th defendant is found both psychologically and medically unfit because of poor exercise tolerance due to right ankle injury history for detention in a Detention Centre.

19.  Counsel for the 2^nd defendant confirms his client understood and agrees with the contents of the report.  He points out, as stated in the report, the 2^nd defendant was cooperative in attitude in the interview in disclosing his background and outside merriments, and his father blamed for the long working hours of himself and his wife so that they failed to keep the defendant under close and effective supervision during his crucial stage of development.  The counsel on behalf of the 2^nd defendant urges the court to accept the recommendation and sentence the defendant to a Detention Centre for the short, sharp, shock programme would be beneficial to the defendant’s rehabilitation.

20.  Counsel for the 4^th defendant also confirms his client understood and agrees with the contents of the report.  She highlights, as stated in the report, the 4^th defendant was polite and cooperative during the interview and showed his remorse.  As he is found psychologically and medically unfit for detention in a Detention Centre, the only sentencing option is imprisonment.  She submits both the defendant and his mother plead for court’s leniency.  It is stated in the report that psychological assessment was conducted on the 4^th defendant during his current remand.  Formal intellectual assessment results revealed that his overall intellectual functioning is within the lower borderline range, which is lower than normal intelligence but higher than intellectual disability.  He has particular deficits in verbal comprehension and perceptual reasoning, which place him in the mild disability range.  Given his difficulties grasping relatively more complex verbal information in daily interaction with others, adjustment issues would be likely to arise in more demanding interpersonal and penal contexts.  He is therefore considered psychologically unfit for the Detention Centre programme.  Because of poor exercise tolerance due to right ankle injury history, he is considered medically unfit for detention in a Detention Centre.  It is also revealed in the report that he got acquainted with undesirable peers, highly attached to delinquent norms and values.  He also got acquainted with triad elements while having fun with his baneful peers outside and had become a member of Wo Shing Wo triad society in early 2019, his triad protector was 7^th defendant.

Deliberation of sentence on the 2^nd defendant

21.  Counsel for the 2^nd defendant in his mitigation submitted that the 2^nd defendant blames the root of his commission of the offence to his foolishness and his blind loyalty to his friends.  Counsel also submitted that the 2^nd defendant’s disabilities as stated in the Educational Psychologist’s Report can be regarded as mental illness which played a part in the commission of the offence and a discount of sentence may be allowed to reflect the defendant’s diminished criminality or culpability as discussed in the case of HKSAR v Chui Peng [2002] 1 HKLRD 185.  Counsel also refers to the positive and favorable comments in the letters for mitigation.

22.  I find the positive and favorable comments made by the staff of the Vocational Training College about the 2^nd defendant’s personality and conduct conflict with what the 2^nd defendant himself disclosed to the assessment officer of Pik Uk Correctional Institution.  It is reported that whilst he was attending the course, he turned playful and wayward in character after remixing with the 7^th defendant who had become a triad member of Wo Shing Wo, indulged in frequenting cyber cafe and basketball courts with his delinquent peers at his leisure.  When his vocational class was suspended in February 2020 due to Covid-19 pandemic, he quit his part-time job, became a triad member of Wo Shing Wo and a follower of the 7^th defendant in the same month.  Together with his triad peer group, he believed that they were strong enough to stand up as local bullies.  During that period, he did not have any intention to secure a stable job, only indulged in nocturnal activities with his baneful peers at the bars.  Based on these information, the 2^nd defendant was not acting blindly for his friends as he put it but actually followed the 7^th defendant, his triad protector, to attack the victim who was a total stranger to him.  His counsel in his mitigation on his behalf submitted that the 2^nd defendant admitted he kicked the victim 3-4 times when the victim was already on the ground and after being hit by the 7^th defendant with a fire extinguisher, as well as before for 3-4 times.

23.  From the CCTV footage, I can see as soon as the group approached the victim, the fisting started right away followed by more punching and kicking, the victim did not and could not put up any defense.  The assault continued after the victim fell onto the ground.  Then came the most alarming and ruthless part of the attack, that is, the 7^th defendant first using a plastic signboard then a fire extinguisher to hit the victim repeatedly, finished off by throwing the fire extinguisher at the already motionless victim.  Despite such ruthless and severe attack by the 7^th defendant, the whole group did not stop their attack but continued kicking the victim and one assailant used a rubbish bin to hit the victim until some patrons inside the AGC intervened.  They showed no mercy whatsoever to the victim then but now plead for court’s mercy.

24.  The 2^nd defendant is found suitable for admission in a Training Centre or a Detention Centre.  He is considered to be more suitable for detention in a Detention Centre where he would undergo a short period of strict disciplinary training and to be followed by statutory supervision.  According to his counsel, the 2^nd defendant accepts the recommendation.

25.  No doubt the 7^th defendant was the principal offender, the rest of the group acted in concert in attacking the victim are equally culpable.  The 2^nd defendant was amongst the initial attackers fisting the victim.  When the victim was on the ground motionless after the brutal attack by the 7^th defendant, the group including the 2^nd defendant continued to kick him.  I take a very serious view of this ruthless and merciless assault as I believed it must be one of the worse cases of its kind.

26.  The 2^nd defendant was arrested on 28 May 2020.  He has been remanded in custody since and up to date has been over 15 months.

27.  His counsel submits that the 2^nd defendant’s comparatively low intelligence (IQ), deficient in literacy abilities, low adaptive functioning, mild speech handicap can be regarded as mental illness which played a part in the commission of the offence (namely his foolishness and his blind loyalty to friends).  Counsel cited HKSAR v Chui Peng, CACC  287/2001 and submits that if an accused is suffering from mental illness which played a part in the commission of the offence, the court may allow a discount of sentence to reflect the 2^nd defendant’s diminished criminality or culpability.  In Chui Peng’s case, the Court of Appeal inter alia held:-

“Where an accused was suffering from a mental illness which played a part in the commission of the offence, the court could properly allow a discount of sentence to reflect his diminished criminality or culpability. Here, D’s illness made him confused, indecisive and credulous. His reasoning was muddled and he was highly susceptible to persuasion by others. However, he knew what was happening was seriously wrong and must have appreciated that he was committing a serious crime. Hence, the 6 months’ discount was in no way inadequate.”

The applicant in that case suffered from a mood disorder and was in a major depressive episode at the time of the offence and that was supported by the evidence of Dr. Sylvia Chen, a renowned psychologist.

28.  In the case of the 2^nd defendant, what his counsel relies on is the Educational Psychologist’s Report dated 16 June 2016.  The 2^nd defendant was 14 years 8 months at the time he was assessed.  He was 19 when he committed the present offence.  Without medical proof, I am not convinced the 2^nd defendant has mental illness nor persuaded his mental faculty played a part in the commission of the offence.  He did not reveal to the assessment officer that he has mental illness when he was interviewed for the purpose of assessing his suitability for Detention Centre or Training Centre.  The long letter he wrote for mitigation does not indicate he has any mental disability.  He is considered mentally and physically fit for detention in a Training Centre or a Detention Centre, but more suitable to undergo a short period of strict disciplinary training to be followed by statutory supervision.  I have no intention to sentence the 2^nd defendant to prison for he is suitable for detention in either Training Centre or Detention Centre, hence, I would not bother about the discount on sentence.

29.  The 2^nd defendant in his mitigation claims he has gained insight, he is now remorseful, determined to turn a new leaf, will stay away from dubious friends in future and to lead a decent life.  Having taken into account facts of the case, the mitigation put forward, and revelation of his close acquaintance with dubious peers and having become a member of a triad society, I do not think a short detention period will be in his best interest or helpful to his rehabilitation.  I am more inclined to sentence him to a Training Centre for I believe, apart from punishing him for the very serious offence he committed, he will be able to benefit more from receiving various types of training and guidance in the Training Centre, and equally important, a chance for him to sever his association with his dubious peers especially those with triad background.

Deliberation of sentence on the 4^th defendant

30.  The only sentencing option for the 4^th defendant is imprisonment.  Counsel for the 4^th defendant submits in mitigation that the defendant did not know the victim and was unclear what had actually happened at the material time.  After the group attacked the victim, he went forward to kick the victim twice just to gain recognition from friends, just rode on others’ acts.  He, like the 2^nd defendant, is not being honest for he tried to hide the fact that he had become a member of a triad society and was a follower of the 7^th defendant.  I do not accept he took part in the attack was to gain recognition from friends, but rather from his triad protector and triad peers.

31.  There is no tariff on sentence for Wounding 17 offence.  The general range of sentences is 3 to 12 years’ imprisonment depends on the circumstances of each individual case.

32.  In HKSAR v Roka Sijan, CACC 281/2017, the applicant was convicted on 2 charges of Wounding with intent for attacking 2 victims with a lethal weapon (a kukri knife)  was sentenced to imprisonment for 5 years and 4 years respectively to run concurrently.  The Court of Appeal stated in para 51: “We were of the view that the overall sentence was very lenient in the circumstances of the case, but in fairness to the judge, she may have felt constrained by the jurisdictional ceiling of the District Court of 7 years’ imprisonment.” In para 51: “Any form of violence must be visited by condign punishment in order to serve the purposes of retribution and deterrence.  This is especially true in cases of wounding, where the element of the offence is that the offender intended to inflict really serious injury on the victim.  Whilst there is no sentencing guideline for wounding, it has been said that the usual range will be between 3 to 12 years’ imprisonment, although this will very much depend on the particular circumstances of each case.  See HKSAR v Tse Hok Lam [2005] HKLRD 344 and HKSAR v Chun Sze Wing, CACC 289/2011, 14 June 2012, unreported at para 12.  However, we would add that in very serious cases of wounding, a sentence outside this range may well be warranted.”  In para 53: “Key factors in determining the appropriate level of sentence for the offence of wounding, include the nature and circumstances of the assault, the use of a weapon and the circumstances of its use, the defenceless state of the victim, and the nature and effect of the injuries suffered by the victim.  For these factors, the judge in the present case should have imposed a much higher starting point.  The applicant called for a “kukri” which was given to him, and he then engaged in a deliberate and sustained attack on PW1.  He chopped PW2 first in his pursuit of PW1.  Both men were unable to defend themselves.  He continued to attack and strike PW1, even when he laid on the ground.  The applicant struck several blows at and near the neck of PW1, a vulnerable part of the body, which could have been fatal.  PW1 sustained serious injuries all over his body, which will have a lasting effect on his future wellbeing and quality of life.  PW2 also sustained a serious injury even though he was struck only once.”

33.  In the present case, based on the admitted facts and the CCTV footages, PW1 was in an amusement game centre for entertainment with 2 friends, he was suddenly grabbed from behind by several persons and was immediately punched and kicked.  He was completely defenceless whilst being assaulted by all the 7 defendants.  After fallen onto the ground, the ruthless assault continued.  The 7^th defendant first used a plastic signboard then changed to a fire extinguisher as weapon, raised his weapon above his head to hit at PW1 repeatedly when PW1 laid on the ground.  The group continued kicking PW1 until other patrons inside the amusement game centre went up to intervene.  Admittedly, both the 2^nd and 4^th defendants went up and gave PW1 several more kicks after PW1 had been severely assaulted by the 7^th defendant with a fire extinguisher.  I should repeat here, the victim was close to his death and is lucky to be alive but he is now permanently disabled and the disability will be lifelong affecting his well- being, his choice of work and quality of life. 

34.  Having taken into account the facts of this case, the relevant elements, and mitigation put forward, I take a starting point of 4½ years’ imprisonment. The 4^th defendant is entitled to a discount of one-third for his timely plea, I sentence him to 36 months’ imprisonment.

Sentence

35.  The 2^nd defendant is sentenced for this offence to Training Centre.  The 4^th defendant is sentenced for this offence to 36 months’ imprisonment.