HKSAR v. LEE YIK LUN AND OTHERS

DCCC 739/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 739 OF 2014

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Reasons for Sentence

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1.  Upon plea bargaining, the prosecution amended the charge sheet by inserting two alternative charges to the 1st count of robbery.  Originally, the trial was to be proceeded against D2 and D3 only. At the end of the day, all five defendants pleaded not guilty to Charge 1.  All defendants pleaded guilty to the alternative charge of AOABH (Charge 2).  D1 and D5 also pleaded guilty to another alternative charge of theft (Charge 3). D1, D2, D3 and D5 pleaded guilty to the offence of blackmail (Charge 4).  They were convicted of the various charges to which they pleaded guilty, and the remaining charges are all left on court file.

2.  In light of the ages of the defendants, I called for various reports as follows:

(1) For D1 - Detention centre, CSO and probation report;

(2) For D2 who is a girl - Training centre, Rehabilitation centre, CSO and PO;

(3) For D3 - Detention centre, CSO and PO;

(4) For D4 - Detention centre report (as D4 was not the first offender);

(5) For D5 - Training centre, Detention centre, Rehabilitation centre, CSO and PO.

3.  I adjourned the sentencing proceedings to 4 February.  Originally, the prosecution prepared a tailor-made Summary of Facts for each and every defendant.  At the request of this court, a consolidated Summary of Facts for all defendants was tendered for sentencing purpose. 

4.  Today, in the course of mitigation, counsel for D5 made complaints relating to two areas of the Detention centre report, namely the medical history of D5 and his triad links, if any.  In the circumstances, I adjourn D5’s sentence to 17 February at 2.30 pm and call for another Detention centre, TC and RC reports to be compiled by another officer.

Brief facts

5.  D2 Sze and Mr X are cousins.  After finishing his university education in Australia, X returned to Hong Kong.  In or about March 2014, X learned through Facebook that D2 was unhappy because she had broken up with her boyfriend.  X got in touch of D2 to cheer her up.

6.  On 20 May 2014, D2 told D1 that X had had sex with her several times.  D2 was told to call X and ask X to come to the podium so that X would be beaten up and taught a lesson.  D1 called some of his friends to provide assistance.  In the evening on the same day, D2 told X over the phone that she was drunk and was at the podium on the 4th Floor of Fu Cheong Estate, Sham Shui Po (the podium).  D2 asked X to pick her up there and take her home.

7.  Upon arriving at the said podium, X saw D2 sitting on a staircase together with two other girls.  When X was approaching them, the two girls walked away.  X could not smell any alcohol on D2 who asked X to stay longer for a chat.

8.  After a few minutes, D1 and D3 appeared. D2, who appeared to be sober by then, said to D1, “I have finished acting, brother” and then walked aside.  D3 was not close by when D2 spoke.  D1 then confronted X and asked him if he had sex with D2.  X denied.

9.  In the presence of D2, D1 and D3 kept on accusing X of having sex with D2.  Later, D4 and D5 arrived.  D1 asked X to suggest a way to resolve the matter, but X could not.  D1, D4 and D5 then started to assault X by punching and kicking X’s body for about 2 minutes.  X fell onto the ground feeling severe pain on his head, back, chest and right arm.  D3 was present and only lent his weight to the assault but did not land any blows on X.  D2 was present throughout.  D1 then asked X if he got any money with him.  D1 then took X’s wallet and stole $400.

10.  D1 further demanded X to give him $10,000 before midnight that day to resolve the matter.  D1 hinted that he had triad connections.  He also threatened to cause trouble to X and his family if X did not pay up the sum.  D1 threatened X not to report to the police.  D4 was in the vicinity but was not involved in D1’s demand. 

11.  X was scared and told D1 that he could not get the money that night.  D1 then demanded X to pay $14,000 on the following day and threatened X again.  D1 said the sum of $14,000 was to be shared out by seven in equal share, including the two girls who had been chatting with D2 at the beginning.  The whole party, including X, left the podium.  X and D1 used the same lift while others used either another lift or staircase.  CCTV in the lifts captured the parties leaving.

12.  X reported the matter to the police. Upon police arrangement, X called D2 who asked X to give her the money in Fu Shin Estate, Tai Po, at 6 pm that day.

13.  At about 6:05 pm, X arrived at a restaurant in Fu Shin Estate.  X informed D2.  At about 6:20 pm, D1 and D2 appeared outside the restaurant.  D2 called X and asked X to come outside but X refused.  D1 and D2 also refused to enter the restaurant.  Eventually, X identified D1 and D2 to the police officers who then arrested them.  Under caution, D2 said, “Sorry, I should not have got someone to rob my cousin or blackmail my cousin.”

14.  When the party was leaving the scene, X spotted D3 near a bus stop.  X pointed D3 out to the police.  D3 was arrested. D4 and D5 were arrested on 22 May 2014.

15.  In the video-recorded interviews, all five defendants made certain admissions as follows.

D1 - Lee Yik-lun

16.  D1 admitted that he had assaulted, stolen money from and blackmailed X.  D1 claimed that it was because D2 alleged that X had raped D2 three times.  They formulated a plan with D2 calling X out to the podium.  D1 also called D3, D4 and D5 to go to the podium in order to provide assistance and/or to hit X. 

17.  When confronted with the X rape allegation, X denied and was beaten up for about 3 minutes by all four males present at the podium.  D1 hit X’s face several times.  After the assault, D1 took $400 from X’s wallet.  He used the money for a meal with the other defendants, except D4. 

18.  D1 also told X that the matter could be resolved if X paid $14,000 so that each of the seven persons at the scene could get $2,000.  The sum of money should be paid by 6 pm the following day.  D1 also warned X that if X could not pay the money in time, X would be beaten up again.  X was frightened.  D1 confessed that together with D2 and D3, D1 went to collect the money on the following day.

D2 - Sze Hoi-yan

19.  In the presence of her father, D2 admitted that she made the arrangement to have X beaten up by others.  D2 alleged that she had had sex with X.

20.  In the early morning of 20 May, D2 met D1 and they started to have alcoholic drinks.  D2 told D1 that she had sex with X and suggested to ask X out for a talk.  They formulated the idea of teaching X a lesson.  D1 then arranged D3, D4 and D5 to join them.  D2 then called X and asked the latter to go to the podium.  When X arrived, D1 asked X if he had “messed with” D2, but X denied.

21.  D1 suggested to have a one-against-one fight, and D2 picked D4 to fight with X.  When D4 started to assault X, other people joined in and they punched and kicked X.  D2 saw D1 taking $400 out from X’s wallet.  D1 demanded each of them should get $2,000 from X, failing that X would be further assaulted.

22.  X called D2 on the following day.  Acting on D1’s instruction, D2 told X to meet them at 6 pm at Fu Shin Estate and gave them the money.  D2 met D1 and D3 before going to Fu Shin Estate.  D2 admitted that each of them would get $2,000 to settle the matter.

D3 - Chow Tsz-fung

23.  He met D1 and D2 on the podium on the day.  D2 alleged that her cousin X persuaded her to have sex with X.  D1 suggested D2 to ask X to come to the podium and they would beat X up and teach X a lesson.  D2 phoned X to come while D1 called D4 and D5 to join them.  At first, D1 and D4 asked X whether X had had sex with D2.  D3 joined in later.  X denied.  D1 then suggested to have a one-against-one fight.  D4 had a fight with X and then others joined in by punching and kicking X who did not fight back but fell onto the ground. 

24.  D3 claimed that he did not hit X but was close by at the time of the assault. 

25.  After that, D1 asked X to pay compensation money of $14,000, that is $2,000 each.  X said he needed time to raise the money.  D1 then demanded the money to be paid by 6 pm the following day, that is, 21 May.

26.  On the following day, D1 called D3.  D2 had told X to meet her at Fu Shin Estate at 6 pm that day.  D3 met D1 and D2 at the Fu Shin Shopping Centre at about 6.15 pm.  D2 called X, and then D1 and D2 went to meet X at a restaurant in the vicinity.  D1 told D3 to wait for them at a taxi stand.  Later, D3 was arrested by the police. 

D4 - Chen Zhiyong

27.  D4 admitted that he did attack X but denied stealing $400 from X and blackmailing X for $14,000.  It was D1 who called him to go to the podium.  X denied that he had raped or molested D2.  D1 asked him to beat X up.  D4 punched X’s face a few times.

D5 - Wong Wo-fat

28.  D5 admitted that he attacked X, took part in taking money from X and also blackmailed X.  D1 called D5 to meet D1 at the podium.  At first, X fought with D4 as arranged by D1.  Later, D5 and others joined in and started to assault X with fists and kicks for a while.  X tried to ward off the attack.  D5 hit X on his back and abdomen.

29.  D1 took $400 from X’s wallet and they spent the money on a meal.  To resolve the matter, D1 told X that X had to pay $2,000 to each of them, making it a total of $14,000.  D1 allowed X to have time to raise the money by 6 pm on the following day.  It was agreed amongst the defendants that D1, D2 and D3 should collect the settlement money from X. X was further warned that he should not report the matter to the police.

30.  D5 admitted that he was wrong, saying that, “I should not have gone robbing and wounding that person.”

Identification parades

31.  X identified D4 and D5 as the persons who attacked him on the podium. 

Medical examination of X

32.  X received medical attention on 20 May 2014.  X was found to have suffered from tenderness at right ribs, mild bruising on his back, mild redness over the nose and mild abrasion at right forearm.  X was discharged and granted 3 days of sick leave.

Mitigation

D1 - Lee Yik-lun

33.  Counsel for D1 tendered a bundle of documents (marked as MFI(1) and other documents as MFI(2) sequentially).  It was submitted that D1 was fully remorseful and he pleaded guilty to the charges.  D1 had a clear record and has a positive good character, doing various kinds of voluntary works. 

34.  The bundle, MFI(1), comprises of four parts: the documents, D1’s medical reports, 14 mitigation letters and some witness statements.  It was said D1 had been admitted to ICU back in June or July 2013 because of his heart condition.  D1 is suffering from various diseases, including acute myocarditis, poor lung function, uncontrolled asthma, severe obstructive sleep apnea and right peroneal nerve palsy.

35.  D1 is willing to make a compensation of $400 to X.  D1 denied any link with trial members nor did he participate in any triad activities.  He had bad company though.  D1 genuinely believed D2’s allegations against X.  D1 wanted to do justice and was so motivated by such an incentive. 

36.  It was submitted that the present offences, particularly the blackmail charge was not the usual type.  It was submitted that there is a legitimate reason to suspend the sentence, both on the grounds of D1’s medical problems and his motivation to do justice.

37.  D1’s mother made a statutory declaration.  She felt shameful that as a parent, she did not devote much time in taking care of D1.  D1 has the zeal to help others when he joined the scout activities.  He made blood donations on regular basis.  She said D1 is deeply repentant for what he has done and apologised for his foolishness.

38.  D1’s sister said D1 is a generous and unselfish person who was active in various volunteer works.  D1 also cares a lot about his family members, even preparing late night snacks or soups for his sister. 

39.  Other mitigation letters come from family friends, director of Buddhist Monks Association, founder of Kelly Animal Shelter and D1’s friends from Civil Aviation Department and Hong Kong Customs and Excise.

D2 - Sze Hoi-yan

40.  Counsel tendered five mitigation letters prepared by D2, D2’s parents, X and the school teacher for counselling.  D2 said that she likes to study history and wants to be a kindergarten teacher. She regretted for what she had done and hoped that she could return to school as soon as possible. 

41.  D2’s mother said she did not supervise D2 closely and D2 was raised from a single family at the age of 2.  Both D2’s parents pleaded for leniency from this court. 

42.  X in his letter said he has forgiven D2 who was under the bad influence of “unhealthy friends and peers.”  The incident caused great impact on both families, and X would like to see D2 continuing her study and enjoying a healthy and happy childhood.

43.  It was submitted that D2 has learnt a bitter lesson as she has been in remand for 21 days.  D2 has improved her behaviour and would like to have the chance to continue her study.  It was said a probation order should be considered.

D3 - Chow Tsz-fung

44.  Counsel for D3 accepted that the PO report is not a favourable one.  D3 is not a triad member.  D3 submitted three mitigation letters, one from D3 himself, the others from Reverend Lui and D3’s previous employer. 

45.  In his mitigation letter, D3 said he was able to reflect on himself during the period of remand.  He mixed with bad elements for the past 2 years and was remorseful for what he did.  D3 learned how to care for his family and realised that he has the support from his family all along.

46.  Counsel submitted that D3’s father has made arrangement with his company so that D3 can work with him when D3 is released.  D3 promised to reform himself and to lead an industrious life.

47.  D3 has a close relationship with D2 and treated the latter as his sister.  There is no evidence to suggest that D3 involved in the physical attack.  D3 did not occupy an active role too but he accepted full responsibility.  D3 committed the crime out of his friendship with D2.  D3 did not derive any gain from this incident.  He promised to turn a new leaf.

D4 - Chen Zhiyong

48.  He is now aged 21.  D4 admitted his culpability in this matter.  He is suffering from diabetes and epilepsy.  He has previous convictions.  Out of brotherly protection towards D2, D4 committed this offence.  D4 surrendered himself to the police and was only involved in the assault. 

49.  It was submitted that D4 played no part in the threat and the blackmail. 

50.  The injury suffered by X was not serious.  There was no weapon used in the assault.  D4 is willing to pay $2,000 to X as compensation.  Counsel urged this court to impose a non-custodial sentence. 

51.  D4 prepared a mitigation letter saying that his family members have to shoulder heavier responsibility when D4 is being remanded. 

52.  Counsel also submitted four authorities on behalf of D4.  The bundle of authorities is marked as MFI-4.  Counsel urged that a suspended sentence is justified.

Sentence

D1 - Lee Yik-lun

53.  D1 is now aged 22.  He left school in 2012 as a Form 5 student.  He had a clear record.  His class teachers commented D1 as a confident, strong headed, playful and impulsive boy who had not put much efforts in his study. 

54.  The probation officer also commented that D1 had led a double life in that he had been active in his scouts and volunteer work, but on the other hand, also active as a significant member of a triad society.

55.  D1 played an important role in the offences.  After considering all other factors, the probation officer did not recommend probation supervision nor CSO.  Instead, it was recommended that D1 is in need of disciplinary and character training to instil him with a sense of being a law-abiding citizen.  On the other hand, the Detention Centre report commented that D1 is not suitable for detention in a Detention centre.

56.  D1 pleaded guilty to Charges 2 (AOABH), 3 (theft) and 4 (blackmail).  He occupied a central role in these offences and apparently acted as the big brother of the gang.  He assaulted X and took $400 from X’s wallet.

57.  The aggravating features in this case are that X was accused to have sex with an underage girl D2 who even accused X of raping her.  D1 called upon other defendants to appear at the podium to show force and exert pressure on X.  D1, together with D2, also initiated to ask for $2,000 each from X for seven people and threatened X with further assaults.

58.  As the reports have made it clear that D1 is not suitable to go to Detention Centre nor being placed under probation or CSO, I take the view that the only alternative is imprisonment.  D1 admitted his wrongdoings in the offence and said he had severed his links with triad elements. 

59.  Taking all mitigating factors into account, I will sentence D1 to 12 months in respect of Charges 2 and 3.  D1’s guilty pleas allow him to have his sentence reduced by one-third to 8 months. The sentences for Charges 2 and 3 are to be served concurrently.

60.  As regards the blackmail charge (Charge 4), it bears a different nature, and X was subject to further threat and the possibility of being assaulted.  The sum involved was $14,000 and no money changed hands.  From the facts of the case, there was no evidence to show that the blackmail was triad related and the demand in fact was a one-off transaction.  But D1 was one of the instigators in the plot. 

61.  It is trite that the offence of blackmail is one of the most serious offences in the calendar of offences, with deterrence as the most important part of the sentence.  In the end, I will take 24 months as the starting point, and with his plea, the sentence is reduced to 16 months.

62.  I have also considered the totality principle.  The blackmail offence can be taken as part of a series of events starting from D2’s allegations against X.  I order that 6 months of the third sentence is to be served concurrently with the first two sentences. 

63.  Counsel for D1 said D1 is willing to pay $400 as the  compensation; in fact, it should be labelled as a restitution. Accordingly, I make the restitution order of $400 to be paid by D1 and the money comes from D1’s bail money, which is agreed by counsel for D1. 

64.  I also take this act as a gesture of remorsefulness.  As such, I further reduce the sentence by one month.  That means I sentence D1 to a total of 17 months’ imprisonment.

D2 - Sze Hoi-yan

65.  D2 is aged 15 and had a clear record. She is a Form 3 student.  The reports showed that D2 regretted very much for committing the current offences and promised that she would never violate the law. 

66.  It was recommended that in order to strengthen D2’s law-abiding concept, a period of disciplinary training coupled with statutory supervision would be beneficial to D2.  It was recommended to send D2 to a Rehabilitation Centre.  On the other hand, the probation report stated that a period of 18 months probation supervision is recommended. 

67.  D2 pleaded guilty to the alternative count of AOABH (Charge 2) and blackmail (Charge 4).  It is obvious that the whole incident was triggered by D2’s allegations against X.  She started the saga and enlisted the assistance from D1.  D2’s role in this incident is significant.  As such, I will accept the recommendation of the report that D2 requires a period of disciplinary training with supervision.

68.  Accordingly, I send D2 to a Rehabilitation Centre.

D3 - Chow Tsz-fung

69.  D3 is aged 20 and had a clear record.  D3 completed Form 3 in 2008.  D3 pleaded guilty to Charges 2 (AOABH) and 4 (Blackmail).  I accept that D3 did not take a central role in this incident. 

70.  The probation officer said that both probation order and CSO are not recommended.  Owing to marital discord, D3’s parents divorced in 2011 and his father could not spare time in rendering supervision and coaching over D3.  It was recommended that a short period of disciplinary training coupled with supervision would be beneficial to D3 and that would prevent D3 from further behavioural deterioration.  As such, a Detention Centre order is recommended.

71.  Taking all factors into account, I accord priority to the principle of rehabilitation in relation to the young offender like D3.  Although D3 did not make the physical assault on X, his culpability was based on the principle of joint enterprise.  D3 also joined D1 and D2 on the following day with a view to get money from X.  D3 was told to wait at the taxi stand. 

72.  Taking all factors into account, I accept the recommendation of the CSD officer and send D3 to a Detention Centre.

D4 - Chen Zhiyong

73.  He pleaded guilty to one alternative count of AOABH, that is Charge 2 only.  D4 is aged 21 and withdrew his study in 2009.

74.  D4 had two previous convictions.  He was sent to a training centre in 2011 for the offence of trafficking in a dangerous drug.  He was sentenced to 2 months, suspended for 12 months for a similar offence of AOABH in July 2014.  The present offence was committed in May 2014 while the previous offence occurred in or around November 2013.  D4 was recalled in July 2014 and was eventually released in November 2014. 

75.  D4 admitted his culpability in this case.  D4 was not recommended to go to a Detention Centre as he had previously served a sentence in a Training Centre.  D4 confessed that he punched X’s face a few times and occupied an accessory role.  X did not suffer from serious injuries except some tenderness and redness over his face and/or body.

76.  Taking all factors into account, particularly the fact that D4 committed the present offence while on bail for another offence and the fact that he was not acting alone, I would adopt a starting point of 3 months.  With his plea, I reduce the sentence to 2 months.

77.  On the other hand, D4 committed the present offence in May 2014 while the suspended sentence was imposed in July 2014.  To be fair to D4, I would not activate the suspended sentence imposed by the learned magistrate in the case KT 1922/2014.

78.  D4 is willing to pay $2,000 as compensation to X.  I treat this as another gesture of remorsefulness.  Accordingly, I further reduce the sentence by half month.  That means I sentence D4 to an imprisonment term of 1½ months.

79.  I also make a compensation order of $2,000 to be paid by D4.  The money would come from D4’s bail money which was agreed upon by counsel for D4.

80.  I am sure that all the defendants would take this incident as a bitter lesson to learn, but their wrongdoings also cause members of their respective families to suffer.  The punishment now being imposed upon each and every defendant should be taken as a factor to propel them to turn a new leaf and as a reminder for them that dire consequences would follow from any wrongdoings that they might commit.  With the brunt of criminal sanctions, it is expected that each defendant could treasure and appreciate the support of family members and will value the importance of liberty and of being a law-abiding citizen.