HKSAR v. LAW WAI WAH AND OTHERS

DCCC 154/2020

[2020] HKDC 976

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 154 OF 2020

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REASONS FOR SENTENCE

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Introduction

1.  Since June 2019, Hong Kong experienced a series of protests in opposition to the introduction of the Fugitive Offenders (Amendment) Bill by the government.  The initial peaceful rallies have since escalated into serious social unrest and public disorder in the territory.

2.  The present case alleged two attacking incidents in a public place on two victims who were just passersby at the material time by a group of protestors assembled in the area of Nathan Road and Argyle street, Mongkok, Kowloon on two consecutive days on 5 and 6 October, 2019.

3.  D1, D2 and D3 were jointly charged with one count of causing grievous bodily harm to male X with intent, together with other persons unknown, contrary to s 17(a) of the Offences against the Person Ordinance, Cap. 212 (Charge 1) and D1 was further and separately charged with another count of causing grievous bodily harm to male Y with intent, together with other unknown persons, at the same area on the following night, under the same provision. (Charge 2)

4.  D1 pleaded guilty to both charges.  D2 and D3 pleaded not guilty to Charge 1 but pleaded guilty to the lesser charge of inflicting grievous bodily harm, contrary to s.19 of the Offences against the Person Ordinance, Cap. 212.  As a result of plea bargaining, their pleas were accepted by the prosecution.

Facts

Charge 1

5.  According to the Amended Summary of Facts, in the evening on 5 October 2019, a large number of protestors assembled in various areas in the Mongkok area as part of the protests since June 2019.  At around mid-night, PW1 (Male X), a visitor from Mainland, was walking back to his hostel in Mongkok after getting off the bus at Nathan Road.  A female confronted him and identified him as a Mainlander.  She pulled his clothes and prevented him to leave.  PW1 tried to leave and felt frightened.  The act caught the attention of others (of about 30 persons dressed in black) who were present in the area at the time.  PW1 was then surrounded by a large number of persons including the three defendants.  The persons in the group began to assault him as he moved from Nathan Road into Argyle Street towards the hostel where he was staying at.

6.  Part of the incident of Charge 1 was captured by an open source video which was played in the court.  The Amended Summary of Facts described the events which were captured by the video in the following sequence implicating the three defendants: -

(a)  D2, who was unmasked with her facial appearance captured, holding an opened rainbow-coloured umbrella and dressed in a pink and red dress, was among the first assailants who began to chase after PW1. She followed PW1 to Argyle Street where PW1 was pushed to the ground by others at the junction of Argyle Street and Sai Yeung Choi Street South. Her opened umbrella covered some of the assailants as they began to assault PW1. It was not raining at the time.

(b)  Among the group of assailants assaulting PW1, D1 who was unmasked and with his facial appearance clearly captured assaulted PW1 with a rod-shaped object. D2 pushed PW1 from behind when other assailants were assaulting PW1. D3 kicked PW1 when he was on the ground. He was unmasked at the time with his facial appearance clearly captured. Further, there is a distinctive tattoo on his left forearm which was exposed as he was wearing a black T-shirt.

(c)  During the incident, someone had shouted words to the effect “open umbrella”, that PW1 had taken photos of the persons in the area, and that PW1 was holding a brick in his hand.

(d)  The open-source video captured PW1 as holding an object in his hand but he never used it.

7.  Throughout the assault, PW1 tried and continued to move towards the hostel.  As he moved towards the carriageway on Argyle Street outside Sin Tat Plaza, the assault upon him continued.  The same coloured umbrella held by D2 appeared in the video blocking the view especially after someone shouted for umbrellas to cover the act, although the facial appearance of the person holding the umbrella could not be shown at that point in the video. The video was not able to capture D1 at this stage of events.

8.  The video shown in court showed that PW1 was savagely attacked by a group of assailants on the ground.  The collar of his upper-garment was torn widely open and he was bleeding profusely after the attack.  The video footage lasted for about 4 minutes.  Eventually at about 0100 hours on 6 October 2019, PW1 returned to the hostel and the case was reported.  He was taken to Kwong Wah Hospital for treatment but PW1 requested to be discharged against medical advice.  PW1 was diagnosed to suffer from bruises over upper lip, abrasions over left zygomatic region, bilateral hands and left knee, tenderness and swelling over left shin, and a large hematoma and laceration (1 cm x 0.5 cm) over occipital scalp as a result of the incident. 

9.  On 9 October 2019, PW1 went to the hospital again for medical treatment.  Detailed examination on that day revealed that he was found to have multiple injuries, mostly in the form of bruises and abrasions.  A more detailed account of PW1’s bodily injuries can be found in paragraph 7 of the Amended Summary of Facts.  I am not going to list them out individually.  Suffice it to say that PW1 was found to have no less than 11 patches of bruises and some abrasions on various parts of his body from head down to his knees and a spot of hemorrhage on the lateral aspect of right eyeball.

10.  PW1 has since fully recovered from his injuries.

11.  During the incident, PW1 lost some of his personal properties including cash (RMB 800 and $500), bank cards, Octopus Card, and his mobile phone and earphones which were taken away by the assailants.

Charge 2

12.  At about 0200 hours on 6 October 2019, PW2 (Male Y) and his friend took a taxi in the area of Nathan Road and Argyle Street after dinner and drinks but the taxi could not proceed further as barricades and obstructions were erected by the protesters on the road.  When PW2 walked along Nathan Road towards Tai Kok Tsui to return home, he moved away some of the items which obstructed his way at the junction of Argyle Street and Nathan Road.  PW2 was then confronted by 10 odd persons dressed in black who alleged him to be a police officer. Flashlight was shone on him.  Despite PW2’s denial and explanation that he was only about to go home, the group proceeded to assault him.  PW2 ran towards one of the assailants, whereupon others began to assault him repeatedly with punches and kicks as well as bamboo sticks.  Part of the incident was captured by another open-source video, also played in court.  The video captured in particular that D1 was one of the assailants and he assaulted PW2 twice by hitting him with a rod-shaped object.  D1 was in the same clothing items and unmasked as was in the previous attacking incident.

13.  The incident stopped when PW2’s friend intervened and told others that PW2 was simply drunk. 

14.  PW2 was also shown to be bleeding profusely in the video.  Some persons purporting to be first-aiders approached PW2 and later he was taken by ambulance to hospital for treatment.  Medical report showed that PW2 was at the time under the influence of alcohol.  Medical examination at the A&E Department of Kwong Wah Hospital found that PW2 suffered from the following injuries :-

(a)  Y-shaped laceration wound over vertex;

(b)  Multiple abrasions over right eyebrow, right arm, right hand and both legs;

(c)  Bruising and tenderness over right forearm; and

(d)  Movement of right upper limb was found to be reduced and limited by pain

15.  PW2 was admitted to hospital from 6 to 9 October 2019.  A total of 23 days of sick leave was granted by the hospital as well as a private doctor from whom PW2 sought further medical treatment.  PW2 also spent $6,320 for private treatment by Chinese medical practitioner to improve his elbow movement after the attack.  PW2 has since fully recovered from his injuries.

Arrest of D1-D3

16.  D1 was arrested at his residence on 31 December 2019.  Upon arrest and under caution, D1 stated that at the material time, he went to the offence location to look after the young persons who took part in the protests.  He admitted to the offences in both incidents.  House search recovered the clothing items he wore during the offences and the rod-shaped object which he used.  The rod was made in metal and adjustable in length, but is not an extendable baton operable by gravity or centrifugal force.

17.  D2 was arrested at her residence on 31 December 2019.  Under caution, D2 remained silent. 

18.  D3 was arrested at the Hong Kong International Airport on 10 February 2020 as he was seeking to leave Hong Kong.  D3 denied to have participated in any unlawful assembly and denied to have committed Charge 1 or that he was the person shown in the open-source video.

Mitigations

D1

19.  D1 is now 57 years old and has a clear record.  He was born in Hong Kong and was only educated up to Primary 6 level.  He entered the work force since he was 14.  Prior to the arrest, he worked as a cleaning worker on a casual basis earning about $15,000 per month.  He resided with his wife and stepson (aged 17) at a rented premise.  His wife however filed for divorce after his arrest.

20.  D1 was remanded in custody after his arrest on 31 December 2019.

21.  Miss Nam for D1, has said all she can say on his behalf.  In her written mitigation, she described D1 as being a law-abiding citizen for his entire life before these two offences and the acts that he has committed during the two incidents were totally out of his character.  At the time of the offences, Miss Nam said D1 truly felt for the younger generations who were eager to see changes to the society and wanted to support them in last year’s social movements.  At the same time, he was worried about the safety of young people who participated in social events and he wanted to do his part to protect them.  What triggered his actions, I was told, were rumors that the two victims were about to attack the protesters at the time of the two incidents.  There were people chasing after PW1 accusing him of attempting to use a brick to attack the protestors, and during the second incident, another group of protestors chased after PW2 who was heavily drunk, accusing him of using the materials he removed from the barricades to attack the protestors.  That was why D1 impulsively resorted to violence and attacked the victims.  Miss Nam emphasized that she made this statement as an explanation for D1’s acts not as an excuse.

22.  Further, Reverend Mella Francesco who has known D1 since 2015 described him as a compassionate person who was willing to extend help to those in need.  During his prison visits to D1 after he was remanded in custody, D1 expressed deep remorse and he wanted to apologise to the victims in the open court.  A mitigation letter from the Reverend and a church worker was submitted for my consideration.

23.  In summary, Miss Nam emphasised the following mitigating factors on behalf of D1:-

(i)  D1 pleads guilty to all the charges at the earliest opportunity, reflecting his genuine remorse;

(ii)  D1 made full admissions under caution;

(iii)  D1 has a clear record, meaning he has remained law-abiding for his entire life;

(iv)  The injuries suffered by the two victims are not the most serious and not permanent in nature; and

(v)  D1 is willing to make compensation to the victims.

24.  Finally, I was urged to take into account the above and the totality principle in sentencing and to extend leniency towards D1.

D2

25.  D2 is aged 23 and has a clear record.  She completed Form 3 level.  She is still single and prior to her arrest, was living with parents and her younger brother (aged 19) in a public housing in Tsuen Wan.  D2 worked as a saleslady at time of arrest, earning $15,000 per month.

26.  Her counsel, Mr. Yuen, told the court that D2 joined a protest at an earlier time in Mongkok on that evening.  At the material time, she was planning to return home.  When she was at the scene, she noticed that PW1 was holding a piece of brick and looked very hostile.  She also heard people around shouting that PW1 was to attack other protestors. 

27.  D2, out of curiosity, followed PW1 to see what he was going to do to other protestors.  It was at that time that those people around PW1 started to push him and attack him.  When PW1 lost his balance and fell towards D2 at one stage, she just pushed him away.

28.  When people shouted to those who had umbrella to open it, she understood it was intended to cover up the identity of protestors from camera or CCTV.  She just instinctively followed the words of the others and did accordingly.

29.   In mitigation, Mr. Yuen emphasized D2’s plea of guilty and the fact that it is the first time ever that she committed any offence.  At the material time, she was just so carried away by the atmosphere at that particular moment and she first followed PW1 with the intention to see whether he was going to attack other protestors, not to hurt him.  All she actually did was to cover up the identity of other assailants by holding her umbrella and she had a push of PW1 when he lost balance and fell towards her.  Otherwise, she herself did not attack PW1 at all.  She now fully appreciated that it is wrong for anyone to take the law into their hands even if PW1 was going to attack others.  She felt extremely remorseful.  She also felt terribly sorry that she has caused great concern to her family members, in particular, her parents, as well as those who care about her, including but not limited to her friends, ex-employer, current employer at time of offence and social worker who had come to know her previously.  In mitigation, I have received a letter by D2 herself and letters from those people. I do not intend to repeat the contents of those letters.  Suffice it to say that D2 is now extremely remorseful for what she had done and the others were all shock to learn about D2’s involvement in the attack and commented that it was totally out of her character and asked the court to be as lenient as possible. Mr. Yuen said D2 has already learnt a bitter lesson after being detained and lose her freedom since her arrest on 31 December 2019.  It is submitted that it is highly unlikely that she would commit any further offence again.  

D3

30.  Born in Egypt, D3 is now aged 36 and he has a clear record.  He first came to Hong Kong in 2008 as a visitor.  He was married in 2013 and settled down in the city after the marriage.  Now separated with his wife, he is living alone in a sub-divided unit in Argyle Street, Mongkok.  He finished Grade 12 in Egypt.  His wife and two sons (aged 6 and 3) are all in Hong Kong but living apart from him.  Prior to his arrest, he worked as a construction site worker earning only $6,000 per month.

31.  Mr. Yuen told the court that the first attacking incident took place near D3’s address in Argyle Street.  It so happened that at that time, he was in the vicinity intending to go to a 7-11 convenient store to buy cigarettes. He saw a group of persons surrounding a person (PW1) and he overheard that PW1 had attacked a girl who was amongst the protestors.  He went up to have a look.  When PW1 fell onto the ground just in front of D3, he instinctively gave PW1 a kick without giving much thought.  Soon after he left and continued his way to buy his cigarettes.

32.  With hindsight, D3 believed that he might have misheard what was said. He was not very good at Cantonese and at that time it was very confusing with people shouting and yelling.

33.  In mitigation, Mr. Yuen stressed D3’s clear record and his timely plea of guilty which saves the court’s time and avoiding the trouble of PW1 to have to come all the way to Hong Kong to testify during the pandemic.  I was reminded that all he did was just one kick when PW1 fell right in front of him. He now felt deeply sorry for his stupidity in kicking PW1 without giving much thought of the serious consequence. 

34.  Mr. Yuen urged the court to give the two defendants a full one-third discount on account of their timely pleas and stated that both are prepared to compensate PW1 for his loss during the incident. 

Sentencing Considerations

35.  Whilst it is true that there was a certain political background to the commission of the two charges in this case, it is important to always emphasis that the responsibility of the court is to determine legal disputes only according to the law and it is certainly no part of the court’s function to determine political controversies or to promote any political viewpoints in the sentencing process.

36.  At the time of these two offences, it is apparent that the protests on the streets were going more violent and out of control since the social movements started back in June 2019.  Barricades and obstructions were wantonly erected on Nathan Road, one of the busiest road in Kowloon by the protestors blocking the traffic causing much inconvenience and seriously affected the freedom of movement of the travelling public at large and in this case, there were even senseless group attacks by the protesters on civilians who were apparently merely bystanders or passersby who they just thought was a mainlander or a policeman, causing the two victims battered, bloodied, dazed and seriously injured.

37.  In their mitigations, all three defendants attempted to explain their involvements in the attacks by referring to their impressions at that time that the victims had either attacked or were about to attack other protestors.  According to the Amended Summary of Facts and the videos shown in the court, however, neither of the two victims was ever seen attacking or threatened to attack any person at all.  They were basically defenceless during the attacks.  It is true that PW1 was seen holding a rectangular object in one of his hands in the video when he was walking on the street followed by the protestors but he never used the object to defend, not to mention retaliate, during the attack in the first incident.

38.  In sentencing D1, I refer myself to what Zervos JA has said in HKSAR v ROKA Sijan, CACC 281/2017, 28 December 2018, unreported at paragraph 52:-  

“52. 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 are no sentencing guidelines 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 paragraph 12. However, we would add that in very serious cases of wounding, a sentence outside this range may well be warranted.”

39.  The judgment went on to say that 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. 

40.  As said, the group attack on each of the two victims, in which D1 was a main participant, was a savage attack on a defenceless victim for no good reason other than ill-feelings or even hatred towards mainlanders and policemen in general who were perceived to be against their protest movements.  Both victims sustained multiple injuries all over their bodies and the metal rod used by D1 no doubted caused the more serious lacerations on their head regions.  The explanation by D1 that he was under an impression that the victims had attacked or about to attack other young protestors has to be rejected not only because the claim was unsubstantiated by the facts and also simply because, even if what he said was true, there is no place for any revenge attack or vigilante justice as far as mitigation is concerned.

41.  That said, D1 is a person of hitherto clear record for 57 years and I accept that the present offence was committed when he was so carried away by the protestors around him and was totally out of his characters.  Fortunately, the injuries suffered by both victims were not the most serious and were not permanent and they have since fully recovered.  I also have the opportunity to examine the metal rod used by D1 during the attack in court.  As already mentioned, it is not an extendable baton and it is also blunt and light in weight and therefore not comparable to other lethal weapons such as knife or baseball bat.

42.  In each charge, in the case of D1, I consider a starting point of 4 years and 9 months’ imprisonment would be appropriate.  The sentence on each charge will be reduced by one-third to 38 months on account of his guilty pleas which is the only effective mitigation.  Taking all the sentencing factors into account, I consider that a global sentence of 50 months is appropriate to reflect D1’s overall criminality on these two charges.

43.  The prosecution has confirmed that both victims were fully compensated for their medical expenses already and for that, D1 should receive a reduction for one month on each charge (2 months in total), thereby further reducing his total sentence to one of 48 months’ imprisonment.  As a result, I order that 10 months’ imprisonment on Charge 2 to run consecutively with the 38 months’ imprisonment on Charge 1.

44.  In the case of D2 and D3, they were convicted on a lesser offence under s.19 of Cap. 212.  Both defendants should consider themselves very fortunate because of the lenient views taken by the prosecution on the roles played by them in this joint attack against PW1.  In sentencing each of them, I adopt my earlier comment on the wicked nature of the attack by the group of protestors against PW1, and for whatever reason why they decided to take part in the assault, the scene was ugly and what they did were totally unacceptable however low their level of participations in the attack.  I repeat that no matter what they genuinely believed PW1 has done to the other protestors, which was still unsubstantiated, they were not allowed to take the law into their own hands and together with a large group of assailants launched a revenge or preventive strike on a person who simply might have a different background or opinion.

45.  By reason of the above, I consider that the present charge against D2 and D3 is still very serious even it was reduced into a lesser offence.  While D2 maintained that she just gave PW1 a push when he fell back onto her, she was holding an umbrella during the attack and by that, she was obviously engaging in an attempt to conceal the identities of the assailants which must be condemned and in my mind, she was no less culpable as D3 who was actually kicking PW1 whilst he was already lying helplessly on the ground.  Both defendants were not the main attackers who threw the majority of punches and kicks of course but it was a joint attack and in sentencing, I did not seek to distinguish the culpabilities between the two of them.

46.  During mitigation, Mr. Yuen referred the court to the case of HKSAR v Cheng Hung Kwong and Another CACC 138/2009, 3 December 2009, unreported.

47.  In that case, each of the two appellants was charged with two counts of wounding, contrary to s.19 of Cap. 212.  It was alleged that they, together with other persons, wounded the two victims in the case.  The 1^st appellant pleaded guilty to his two counts while the 2^nd appellant pleaded not guilty to his two counts but was convicted after trial.

48.  The sentencing judge adopted a starting point of 21 months for each count.  Both appeal against their sentences and the sentence was confirmed in the appeal.

49.  The Court of Appeal described the case as an ugly affair of a group of thugs bullying innocent people and coming back several times over a period of hours, threatening them at close quarters and when the victims – one of them a woman - sought to escape the group of thugs who closed in on them, they were pursued and assaulted.

50.  Although the background of the present case is not exactly the same as the case cited above, it was submitted that it bears some striking similarities in that the victims, a husband and a wife, who operated a cooked-food shop were attacked by a group of four men gathered outside the shop for no good reason. The injuries sustained by the couple were also not too serious including redness, swelling, abrasions and lacerations over the bodies.

51.  Mr. Yuen submitted that both D2 and D3 were just carried away by the atmosphere at the time of the offence and this is not a case involving any premeditation.  Admittedly, this case is a serious one but at the same time it gives both defendants a bitter lesson and neither of them is going to commit any further offence again in future.  They are prepared to accept the consequence of their recklessness.  Mr. Yuen suggested that a starting point in the region of 20 - 24 months is appropriate for a first-time offender like the two defendants.

52.  Both defendants are of previous good characters but their behaviours in the attack were no different from a group of thugs or local bullies who intimidated or even attacked innocent people at will on the street. There were more number of attackers in this case than the case cited although the duration of attack was much shorter. Taking all the factors and the circumstances into account, however, I consider a starting point of 24 months’ imprisonment is appropriate for each defendant.   Both defendants are entitled a full one-third discount because of their guilty pleas and also, in each case, I will further reduce the sentence by 1 month on account of their efforts to fully compensate PW1.  The resulting sentence for D2 and D3 is therefore one of 15 months’ imprisonment respectively.