HKSAR v. CHENG TSZ FUNG

DCCC 1041/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1041 OF 2014

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REASONS FOR SENTENCE

1.  Cheng Tsz Fung you have pleaded guilty to one charge of assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance[1]; one charge of wounding with intent to do grievous bodily harm, contrary to section 17 of the Offences against the Person Ordinance; and one charge of failing to surrender to custody without reasonable cause, contrary to section 9L of the Criminal Procedure Ordinance[2].

2.  Full particulars of the offences are set out in the facts admitted by you on 11 December 2015 and expanded on by Mr Lam on your behalf.  In summary in the early hours of 2 October 2014 your girlfriend had been out drinking at a bar in Aberdeen together with her friend, Leung Yin and one of his friends Billy Leung. 

3.  You met up with your girlfriend at about 1:00 a.m. after she left the bar and accompanied her home.  On finding your girlfriend very drunk and crying you wanted to find out what had happened. 

4.  Your girlfriend was unable to tell you because she was too drunk therefore at about 2:40 a.m. you used her mobile phoneand telephoned Leung Yin to ask where your girlfriend had been.  Leung Yin replied they had been for dinner and drinks.  Half an hour later you called again asking what your girlfriend had done at the bar.  Leung Yin said your girlfriend had drinks and did nothing else. 

5.  You then told Leung Yin you wanted to beat him.  Together with two other males you went to the bar to look for Leung Yin.  All three of you were armed with metallic torches of about two feet in length.  On arrival you first met Billy Leung.  The three of you surrounded Billy Leung and you asked him if he was Leung Yin. When Billy Leung said no you hit him on the head with a torch, causing his head to bleed. 

6.  The three of you then met Leung Yin.  When the other two males took out their torches Leung Yin ran to the nearby Circle K convenience store.  The three of you chased after Leung Yin and assaulted him inside the store.  The assault continued for about 25 seconds with all three of you using torches to assault Leung Yin on his head and arms while he was on the ground. 

7.  The assault on Leung Yin in the convenience store was captured on CCTV.  The CCTV has been played in court and shows the ferocity of the attack on a defenceless person while he was on the ground.  Still photographs taken from the CCTV have also been produced.  You are the one referred to as the 3^rd male wearing black T-shirt and cap.

8.  Full details of the injuries sustained by Billy Leung and Leung Yin are particularised in the facts admitted by you and in the medical reports submitted to court.  Photographs of the injuries have also been submitted.  Both Billy Leung and Leung Yin have confirmed that they have made a full recovery from their injuries. 

9.  You were arrested on 7 October 2014.  Under caution and in a subsequent video interview you admitted assaulting both Billy Leung and Leung Yin. 

10.  You were released on court bail but failed to appear in the District Court on 30 December 2014.  You were re-arrested over nine months later on 6 October 2015. You appeared in court the next day when the matter was adjourned to 23 October for plea and to enable you to apply for legal aid.  On that day you indicated you would plead guilty and a plea and sentence hearing was set down for 18 November.

11.  The case was further adjourned to 11 December when you pleaded guilty to the charges[3]. Sentence was adjourned until today pending the decision of the Court of Appeal in HKSAR v Lo Kam Fai[4].

Mitigation

12.  In passing sentence I take into account everything said on your behalf by Mr Lam together with the mitigation letters from your aunt and girlfriend.  Mr Lam submits that you are not a person who habitually resorts to violence.  Although you have previous convictions you have none for violence and your last conviction was over 10 years ago.  On this occasion, under the influence of alcohol and with a view to protect your girlfriend, you acted out of impulse. Mr Lam says this will not happen again.

13.  Violence of this kind must be met with deterrent sentences.  In HKSAR v Hau Ping Chuen[5] the Court of Appeal referred to the usual range of sentence for wounding with intent being described as 3-12 years.  The Court of Appeal noting that there were a host of wounding with intent decisions which might be used in favour of a lenient view whereas others favour a stricter view said that:

“At the end of the day, a sentencing court obtains a ‘feel’ for the appropriate result by regard to the attitude of courts over a period of time to a great variety of circumstances.”

14.  In HKSAR v Chan Chun Tat[6] the court listed a number of relevant factors to be considered in determining the gravity of the offence and the culpability of the offender, including the extent to which the assault was premeditated; the reasons or motivation underlying the assault upon the victim; the mental or emotional state of the assailant at the time of the assault; whether alcohol or drugs contributed to the actions of the assailant; whether the assault was committed by the assailant alone or as part of a group; the type of weapons employed; the level of force or aggression and the persistence with which the assault was pressed home; the injuries caused to the victim and the effect of the assault upon the victim and those close to him or her.

Assault occasioning actual bodily harm

15.  Although Billy Leung was injured by a single blow to the head, the photographs of the injury show that this must have been with considerable force.  I am satisfied that a starting point of 8 months imprisonment is appropriate for assaulting Billy Leung. 

Wounding with intent

16.  Leung Yin sustained serious injuries, in particular the laceration to the head; the subarachnoid haemorrhage and the skull fracture.  Although described in one of the medical reports as a minor head injury[7], the impact of the subarachnoid haemorrhage, being a traumatic brain injury, could quite easily have been more severe.  Most fortunately Leung Yin has made a full recovery.

17.  You told the police you were not the one who caused the head injury to Leung Yin.  Mr Lam submits that the male in the white shirt, as seen on the CCTV, played the most active role and therefore this should be reflected in the sentence.

18.  I disagree.  The CCTV shows you actively participating in the attack on Leung Yin while Leung Yin was on the ground and after the male in the white shirt had stopped hitting him and left.  The three of you were acting in concert and are therefore all criminally responsible for the injuries sustained by Leung Yin[8].

19.  Taking into account that you recruited two other males to help you assault Leung Yin; you were all armed with metallic torches; you continued to hit Leung Yin when he was on the ground and defenceless; and Leung Yin suffered what has been described as a minor head injury for which he was hospitalised for three days and has fully recovered, I am satisfied that a starting point of 3 years and 8 monthsimprisonment is appropriate for wounding Leung Yin. 

Timely plea of guilty

20.  You are entitled to credit for pleading guilty however your plea is not a timely plea having been re-arrested over 9 months after you failed to surrender to court.  As Stock JA observed in HKSAR v Chow Tak-fuk[9]:

“…“Whilst the courts must always encourage persons to surrender, so that some credit for that fact will normally be given, those who might be minded to flee should not be led to believe that if ultimately they return they will be in no worse position than had they not fled in the first place.”

21.  You told the police the reason you did not go to court was because your girlfriend was pregnant.  In the letter from your girlfriend she says she had an abortion and that you chose to comfort her.  Mr Lam tells the court the abortion was in January or February 2015.  Whilst understanding your natural concern for the well being of your girlfriend this is no excuse for not surrendering to courtbefore you were re-arrested. 

22.  The usual range of discount afforded to a defendant who absconds is about 20% to 25%[10].  Mr Lam submits a greater discount should be given because no trial date had ever been set down and therefore the administrative inconvenience is less than in other cases.  I do not agree a discount greater than 25% should be given. 

23.  The period of absconding being just over nine months cannot be described as short. You did not surrender but were re-arrested.  This resulted in an additional court hearing on 7 October 2015 with a new plea day set for 23 October.  I am satisfied on account of the lateness of your guilty plea a discount of 2 months for assaulting Billy Leung and 11 months for wounding Leung Yin is appropriate, which is equivalent to a 25% discount.  This reduces the sentences to 6 months imprisonment for assaulting Billy Leung and 2 years and 9 months imprisonment for wounding Leung Yin.    

The refusal by Billy Leung and Leung Yin to testify

24.  Both Billy Leung and Leung Yin informed the police that as over one year had elapsed they had forgotten everything and were no longer willing to testify.  They also said they were too busy to come to court.  You have pleaded guilty in full knowledge that the witnesses were not going to testify against you.  Mr Lam submits in these circumstances you should be given a further discount. 

25.  The evidence of Billy Leung and Leung Yin was not however the only evidence.  You confessed to the attack on Billy Leung and Leung Yin which was captured on CCTV.

26.  In support Mr Lam relies on HKSAR v Ma Ming[11]where the Court of Appeal said when considering totality of sentence the court can in exercising its discretion take into account the frank confession of a defendant which provides the only evidence to support the charge.  

27.  Although the absence of the evidence of the victims makes a prosecution more difficult, I am satisfied in the circumstances no further discount should be given by reason of the fact you pleaded guilty knowing Billy Leung and Leung Yin were no longer willing to testify against you.

Compensation

28.  You have offered to pay compensation of $2,000 to both Billy Leung and Leung Yin.  I am told both Billy Leung and Leung Yin are willing to accept this sum.    

29.  I have reservations in making such an order in particular with regard to Leung Yin who suffered the most serious injuries.  Before considering making such an order I required to be satisfied that Leung Yin was made aware that acceptance of the compensation may be a bar to him issuing civil proceedings.  Mr Ip informs the court that on being told this Leung Yin said he did not intend to pursue any civil action.

30.  Notwithstanding the sum offered is very small, having considered the nature of the injury to Billy Leung I am willing to make an order you pay $2,000 compensation to Billy Leung.  

31.  In my view the amount offered in respect of Leung Yin can properly be described not only as very small but also as derisory.  Ordinarily in these circumstances I would not make an order for compensation.  However, as Leung Yin accepts this sum, in order that he can receive at least some compensation towards his medical expenses I am willing to make an order you pay $2,000 compensation to Leung Yin. 

32.  I order payment of compensation in the sum of $2000 be paid to both Billy Leung and Leung Yin from the monies paid into court.  By reason of the payment of compensation I reduce the sentence on each of the charges by 15 days.  I am satisfied a reduction in sentence of 30 days is appropriate for a total payment of $4,000 compensation.

33.  Subject to meeting the eligibility requirement of the scheme Billy Leung and Leung Yin may make a claim for compensation under the Criminal and Law Enforcement Injuries Compensation Scheme which is administered by the Social Welfare Department.  If they have not already been informed of the scheme by the police I would ask that this be drawn to their attention.  Any compensation awarded will be reduced by the amount of compensation paid by the defendant. 

Failing to surrender

34.  In HKSAR v Ko Chun Hung[12] the Court of Appeal, in rejecting the submission that the appellant had been punished twice for absconding, stated that by absconding the appellant had committed a fresh offence and had to be punished separately.  I am satisfied a starting point of 6 months imprisonment is appropriate.  Giving you full credit for your plea of guilty you are convicted and sentenced to 4 months imprisonment.  

Totality

35.  Although the assault and wounding charges arise out of the same incident sentence must reflect that two persons were injured.  I am satisfied a total sentence of 3 years imprisonment is appropriate for the assault and wounding offences which I reduce by 30 days in recognition of the payment of compensation.    

36.  Failing to surrender is an entirely separate and distinct offence for which, as noted earlier, you are to be separately punished.  In HKSAR v Lo Kam Fai[13] the Court of Appeal said that in principle sentence ought to be served consecutively.  I am satisfied a wholly consecutive sentence is appropriate making a total sentence to be served by you of 3 years and 2 months and 30 days imprisonment, which I am satisfied properly reflects your culpability on the three charges.  

Sentence

37.  You are convicted and sentenced as follows:

Charge 1 – 5 months and 15 days imprisonment;

2 months and 15 days consecutive and 3 months concurrent to charge 2;

Charge 2 – 2 years and 8 months and 15 days imprisonment; and

Charge 3 – 4 months imprisonment consecutive to charges 1 & 2;

You will serve a total sentence of 3 years and 2 months and 30 days imprisonment.