HKSAR v. CHAN WAI FUNG

DCCC246/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 246 OF 2009

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Reasons for Sentence

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1.  The defendant faced two charges, one of robbery and one of AOABH, the latter being the alternative charge to charge 1, robbery. 

2.  The defendant pleaded not guilty to the robbery charge but guilty to the AOABH charge.  The defendant was found not guilty of robbery but guilty on his own plea and the evidence before me of AOABH.

3.  The incidents in question took place on 7 January 2009 inside the Fingercure centre located in Mong Kok.  The victim, PW1 worked at the centre at the material times the defendant was an ex-worker of the centre. 

4.  The defendant was in need of money and he had entrusted his bail sheet to PW1 for some time.  The original idea was that PW1 would raise a loan for the defendant with the bail sheet.  As the defendant failed to sign an authorisation letter PW1 could not get the loan for the defendant, for the granting of a loan was preconditioned on the execution of an authorisation letter. 

5.  A few days before the incident in question the defendant met the potential lender, PW3.  He had a conversation with PW3 and somehow the defendant thought that PW3 had already passed the $10,000 to PW1.  The defendant then approached PW1 at the centre.  He asked for the return of the bail sheet or $10,000 the amount of money he asked for.

6.  The police were called and it was agreed eventually between PW1 and the defendant that PW1 would return the bail sheet of the defendant on the following day.  Eventually the defendant, PW3 and PW1 met at a cafe.  The defendant got the bail sheet from either PW or PW3.  Obviously the defendant was not happy with the way that PW1 handled his bail sheet so on the day in question 7 January 2009, the defendant turned up at the centre.  He had an argument with PW1 which escalated into a fight.  The defendant was the one who started an attack on PW1.  He assaulted the victim with kicks and punches.  He also hit PW1 with a chair.  

7.  The attack on PW1 resulted in some injuries to PW1 as shown in the medical report.  PW1 had bruising over right eye and brow and abrasion over left forehead and lower limb.  The defendant was arrested on the following day when he answered his court bail at Kwun Tong Police station.  He admitted to the police that he had assaulted the victim.  He denied that he had robbed PW1 of any money. 

8.  The defendant does not have the benefit of a clear record.  He has a number of previous convictions recorded against him.  On two occasions he was convicted of robbery and sentenced to imprisonment.  On two occasions the defendant was convicted of theft.  On many occasions the defendant was convicted of vice related offences. 

9.  In January this year the defendant was convicted of the offence of managing a vice establishment and he was sentenced to 8 months’ imprisonment.  He is still serving that term of imprisonment at this moment. 

10.  The defendant is now 38 years old.  He received education up to form 3 in Hong Kong.  He told the police that in the past he had been working as a shopkeeper of billiard club and staff of vice establishment.  He has no complaint of any illness. 

11.  In mitigation Mr Fenton informed me that for the two robbery cases the defendant pleaded guilty to the offences.  Mr Fenton referred me to the authority of HKSAR v Lai Ka-lun.  The facts of that case and also the facts of a case referred therein i.e., R v Nguyen Van Thao.  Mr Fenton submits they are far more serious than the facts of this case.  The victims in these two cases suffered permanent injuries as a result of the attacks.  Mr Fenton also cited the case of Ly Xuong Thanh, another case of assault occasioning actual bodily harm decided in 1986.  Mr Fenton submits the facts of that case were also more serious than the ones we are dealing with in that the victim in Ly was a tourist. 

12.  On the facts of this case Mr Fenton submits the starting point should be no more than 5 months.  The defendant pleaded guilty to the offence of AOABH all along.  Throughout the trial the defendant accepted his responsibilities for the attack on PW1.  The offence was not premeditated.  The defendant just went up to the centre to confront PW1.  He acted impulsively resulted in a fight.

13.  On the facts before me, I think a starting point of 5 months’ imprisonment is appropriate given the plea of guilty entered by the defendant I shall reduce the sentence by one-third. 

14.  For the reasons given for Charge 2, I sentence the defendant to a term of imprisonment for 3 months and 10 days.

15.  The defendant committed the offence of AOABH while he was on bail for managing a vice establishment, the case that he is now serving the sentence.  For this reason I would order that the sentence for the present case be served consecutively to the sentence that the defendant is now serving.