HKSAR v. YU PAK SHUN AND ANOTHER

DCCC 1113/2020

[2021] HKDC 794

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1113 OF 2020

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REASONS FOR SENTENCE

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1.  The victim, Mr Cheung, a 19-year-old young man, visited a pub[1] with friends for a drink in Tsim Sha Tsui one afternoon[2] and chanced upon a schoolmate, D1, who bore a grudge against him back in the days when they went to the same school, the meeting of which eventually led to a beef knife attack on the victim.

2.  The attack was captured by the CCTV of the pub — D2 armed with a beef knife was seen approaching the victim, then a struggle between the two ensued, and in the course of it, D1 assisted D2 by slashing the victim also with a beef knife a few times; thereafter D2 kept stabbing the victim on the left side of his body until he fell onto a couch, then the stabbing stopped — the assault lasted around 10 seconds. Before leaving, D2 gave the victim a good telling-off.

3.  The victim received 9 stab wounds mainly to the left side of the body from the knee up to the shoulder. The most serious ones are the 10 cm deep laceration over left posterior elbow, 10 cm deep laceration over left knee and two 7 cm lacerations over left posterior upper arm. Having undergone surgery, the victim was discharged after two weeks in the hospital.

4.  D1, 18 and D2, 27, both admitted wounding with intent to cause grievous bodily harm, contrary to s.17(a)  of the Offences against the Person Ordinance, Cap. 212.

5.  The court heard interviews given by D1 to the police after his arrest that he recognised the victim to be the person who used to bully him at school, and on the day in question his friend, D2, had a dispute[3] first with the victim at the pub, they then went away to fetch the knives from a car and back, D2 started to struggle with the victim, D1 joined in to stab the victim on his back and leg 3 to 4 times, the attack lasted for about 30 seconds, and then he left with D2.

6.  D1 has a clear record whilst D2 has amassed 5 prior convictions over the past decade — his first record is a violent crime (wounding 19)  back in 2011 for which he was sent to DC, and the rest are to do with triad offences except one drug-related, all these were dealt with on the same occasion in 2016 and he was sent to DC once again.

7.  When asked by the court what started the assault, counsel for D2, Mr Boyton, only mentioned that D2 was too drunk to remember what the dispute was about. It is, however, clear from the admitted facts that this was an unprovoked attack in that it was admitted the victim went back to the pub in order to get back his friend’s phone after they had left, while asking the defendants whether the phone belonged to them after someone pointed out the phone to him, D2 used foul language to curse the victim, a dispute ensued and in the heat of the dispute, D2 took out a beef knife and rushed towards the victim.

8.  D1 is not forthcoming either in this one respect. He talked about the dispute between D2 and the victim but for what reasons, he claimed, he did not know. I find this hard to believe. I think he had an old grudge against the victim from their school days as he had told the police in the interviews and then seized this opportunity to take his revenge. A revenge attack is in fact supported by the mitigation put forward by D1.

9.  If one had to talk about provocation, it was all the defendants’ fault to start all this. As can be seen from the CCTV footage, the victim was unarmed and all that he was doing during the incident was defending himself against two armed attackers who meant to hurt him badly.

10.  There is no possible justification at all for the cowardice attack in question. Not only cowardice, it was also a very dangerous act — two men armed with sharp weapon such as beef knife which could easily kill someone. The sentence handed out today should send a clear message that such violent crime would not be tolerated and would be dealt with robustly by the courts.

11.  In mitigation, the court heard that D1 received education up to secondary level, and worked in the transportation field after leaving school. He, single, lives with his parents (mother - a housewife and father - a truck driver)  and an elder sister (a clerk).

12.  Counsel for D1, Mr Ma, submitted that because of the fact that the victim once bullied him at school, D1 stupidly did an act of revenge by slashing the victim a few times.

13.  Mr Ma went on to say that D1 was assaulted by 3 unknown males later in the night on the day of offence. He told the investigating officers that he believed this was something to do with the attack he carried out on the victim earlier in the day, which led to his arrest for the present case. In the subsequent investigation, D1, Mr Ma said, was frank with the police and made a full confession, which showed that D1 was genuinely remorseful.

14.  In his letter to the court, D1 described how he is deeply touched by the almost daily visits of his mom and sister whilst in custody, and the support and encouragement he has got from them help mend his ways. He is determined to put in efforts in study hoping to become a contributing member of the society in the future.

15.  As can be seen from his loved ones’ letters, D1 is a good-natured and kind son and brother in the eyes of the mom and the sister. Mr Ma quoted one incident in support — when D1‘s mother suffered from thyroid cancer a few years ago, despite his young age, D1 was mature enough to have spent lots of time and efforts to take care of his mother. Mr Ma urged the court to accept this offence was committed out of his character.

16.  D2, now a divorcee, has a 2-year-old son to look after but because of his incarceration, he had to hand over custody to his ex-wife but it was his intention to resume looking after the child when he completes his period of imprisonment, counsel for D2, Mr Boyton, said.

17.  Besides his very young son, D2 has also got an aged father to provide for. In his letter to the court, he expressed his regret at not being able to take care of them as he should, and promised to make good use of his time in custody to learn some marketable skills so as to become a useful member of the society.

18.  Mr Boyton submitted that there are no tariffs for wounding with intent, the usual range is one of 3 to 12 years. In SJ v Hau Ping Chuen [2008] 4 HKLRD 673, an authority submitted by the defence, the Court of Appeal dealt with a situation involving the attack using a 5 inch blade which inflicted 5 cm cut wounds on the victim’s stomach and groin, and concluded that a 5-year term was appropriate after trial.

19.  Mr Boyton set out the facts of the present case as follows:

(1)- multiple assailants against a single victim;

(2)- the injuries;

(3)- inside a pub - a public place;

(4)- the assailants were armed;

(5)- there was clearly bad blood between the parties and the victim who was not a stranger to the two defendants.

20.  Evidence-wise, Mr Boyton submitted that there is very little admissible evidence against D2, in particular his identity upon a close examination of the Summary of Facts. D2 made no admissions, and the main thing that links him to this assault is D1’s admissions which are not admissible against D2. Contrary to legal advice, D2 chose to admit his guilt and prayed this in aid of possible mitigation.

21.  Judging from all the information before the court, I do not think the prosecution have a very weak case against D2. Mr Boyton said that the victim was not a stranger to the two defendants when he talked about bad blood between them by way of mitigation; this, to me, sounds like a case of recognition rather than identification, the prosecution are entitled to call upon the victim to make a dock identification during trial. Furthermore, the images of D2 were captured not only by the CCTV of the pub but also by the building where he lived, he was clearly seen wearing the same clothings (for example T-shirt with exactly the same patterns)  on both occasions.

22.  Mr Cheung, in his own victim impact statement, told the court that the incident has a significant impact on his confidence, he prefers to staying at home to meeting friends because he now walks with a limp, and the physical scars over his body still torment him as evidenced by his fear of being in the public place.

23.  The seriousness of the present case lies with the fact that the defendants attacked an unarmed person using very sharp weapons — beef knives, and this could easily maim if not kill the victim. The Court of Appeal in the case of Roka Sijan CACC 281/2017 has this to say about violent crimes:

“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..........”

24.  Given the facts of the present case, I would adopt 5 years as the starting point, and add a further 6 months for the aggravating factor that the defendants were acting in concert.

25.  Insofar as mitigation is concerned, there isn’t anything of substance apart from their guilty pleas. Giving one-third discount for their timely pleas, the starting point is reduced to 44 months. There being no reasons for further reduction in sentence, each of the defendants is therefore sentenced to 44 months’ imprisonment.