HKSAR v. HO WAI TIN AND ANOTHER

DCCC 782, 858, 875, 878 & 995/2013(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 782, 858, 875, 878 & 995 OF 2013 (CONS)

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Reasons for Sentence

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1.  D22, Chan Wing-keung, pleaded guilty before me to one count of “conspiracy to commit criminal damage”, Charge 3. D11, Ho Wai-tin, pleaded guilty before me to one count of “acting as members of a triad society”, Charge 6; and one of “failing to surrender to custody without reasonable cause”, Charge 11.

2.  Between May 2011 and January 2013, PC 7480 was deployed by police as an undercover agent, and in March 2012 he started to infiltrate the “14K” Triad Society.  He is referred to hereafter as PW1.

3.  On 22 May 2012, PW1 joined the 14K Triad Society, and his protector was Tsoi Shing-chuen (D1). Upon the instructions of D1, PW1 took part in various triad activities with other persons.  The activities included splashing paint at certain premises, conspiring to commit common assault and gathering of triad members to show force.  D1 and other culprits were charged for a number of offences as disclosed in the re-amended consolidated charge sheet herein.

4.  In the present case, D11 took part in one of the incidents namely that which happened on 20 August 2012, the subject matter of the 6th charge.

5.  On 20 August 2012 at 0215 hours, D1 gathered the 14K members, including PW1, D6 (Pang Chun-sing), D9 (Leung Yiu-kuen), D10 (Li Yung-sun), D11 (Ho Wai-tin), D12 (Chan Wing-chim), and D13 (Singh Satinder Pat).  D1 told them that he had a negotiation with an opposite party named “Poon Chai” who was suspected of finding persons to assault his triad brother known as “MacDonald”.  As a result, D1 directed the party to take action against “Poon Chai”.

6.  D1 led the party to go to the residence of “Poon Chai” at 13th Floor, Tak Cheong Building, Yee Kuk Street together.  On the way, D1, D9 and D13 warned the group not to walk too close, otherwise the opposite party would be alerted. 

7.  At about 3 am, they arrived at “Poon Chai”’s residence, but were unable to find him.  As they suspected that “Poon Chai” had just left the residence, D1 led the group to go downstairs to locate “Poon Chai”.  D1 directed the group to pick up some hard objects as “Poon Chai” might have weapon.  The group complied with D1’s direction and picked some hard objects from the staircases.

8.  At the end, they found that “Poon Chai” had fled.  At 4 am, under D1’s instructions, the group then disbanded.  D11 had participated in the above and committed the offence of acting as a member of a triad society.

9.  On 31 January 2013, the covert operation turned overt.  D11 and the others were arrested by the police on that day.

10.  Under caution, D11 remained silent but he was identified by PW1 on a duly conducted identification parade held on 9 April 2013 as one of the culprits involved in the offence in Charge 6.

11.  As for Charge 11, after his arrest, D11 was allowed police bail which continued to 15 August 2013 when he was charged.  He was brought up in Kowloon City Magistrates Court and the case was adjourned to 22 August 2013.  Court bail was extended to D11.  He attended the District Court hearing on 10 September 2013.  The District Court proceedings were further adjourned and bail was extended to D11 until the next hearing in the District Court listed for 8 October 2013.

12.  On that day, 8 October, D11 failed to answer his court bail and to surrender to custody. Hence, a warrant for his arrest was issued.  He failed to appear at subsequent District Court hearings.  He did not surrender voluntarily to custody.  He had no reasonable cause for failing to surrender to custody on 8 October at the District Court.  His whereabouts remained unknown until 8 February 2014 when he was arrested by the police.

13.  In relation to Charge 3, D22, Chan Wing-keung, took part in one of the incidents namely that which happened on 31 May 2012, the subject matter of the 3rd charge.

14.  On that day at 6.30 pm, PW1 met D1 and his party, including D22 and D3 (Mok Hoi-fung) as well as a person named “Ho Yin” who is not before the court.  D1 directed PW1 and the party to go to splash paint against the walls, iron gates and wooden doors of two properties, viz: (1) Flat 1706, 17th Floor, Kwai Yan House, Kwai Fong Estate, Kwai Chung; (2) Flat E, 28th Floor, Hoi Wai Mansion, Riviera Gardens, Tsuen Wan.

15.  D22 was responsible for preparing the paint for the paint splashing operation.  D1 gave $400 for them and required them to take a pictorial record of their work.  D1 promised to pay them $1,000 as reward after they had finished the work.

16.  PW1 and D3 were in one group.  They went to the above Kwai Chung address to conduct the operation.  D3 splashed the paint at the wall, the iron gate and the wooden door, whilst PW1 took the pictorial record of their work.

17.  D22 and Ho Yin were responsible for splashing paint at the above Tsuen Wan address.

18.  After they all finished the work, they went to a Thai restaurant in Kowloon City.  They reported the completion of their work to D4 (Lam Man-kit) who then brought the party to meet D5 (Tam Wing-hang).  The pictorial record was transmitted to D5’s mobile phone.  D4 and D5 appreciated their work and promised to engage them in future for similar work.

19.  On 1 June 2012, D1 gave $300 to PW1 as the reward for the above paint splashing operation. 

20.  On 31 January 2013, the covert operation became overt.  D22 and others were arrested by the police.

21.  Under caution, D22 remained silent but he was identified positively by PW1 in an identification parade on 9 April 2013.

22.  On 5 July 2013, D22 failed to report to the police station to answer police bail.  On 4 October 2013, he was re-arrested by the police and charged to the court. 

23.  The criminal record of D11 shows that he had appeared in court on 11 occasions resulting in 16 convictions recorded against him. 

24.  As for D22, he had appeared in court in 21 cases resulting in 23 convictions recorded against him.

25.  In mitigation for D11, Mr Chow submits that the role of D11 was similar to that played by D6 who had been sentenced by this court.  This court took a starting point of 18 months and sentenced D6 to a term of 12 months’ imprisonment.  Mr Chow submits that D11, like D6, was only a foot soldier and not an officer, a similar starting point should be adopted.

26.  D11 is now 37 years old.  He worked as a part-time worker at a demolition company and received $700 daily as his daily wage.  Mr Chow submits that D11 played a minor role in this case and in any event the assault operation failed because the target person fled.  Mr Chow submits the culpability of D11 should be similar to that of D6. 

27.  As for the offence of failing to surrender to custody without reasonable cause, Mr Chow submits that D11 simply forgot to attend the court hearing on the day in question.  He did not know what to do afterwards.

28.  He submits two authorities, HKSAR v Lam Kin Chung CACC27/2007 and HKSAR v Yeung Kin Chai CACC341/2008.  In both cases, the applicant received 6 months’ imprisonment for the offence of failing to surrender to custody without reasonable cause, and the term of the imprisonment was not disturbed on appeal.  He asks me to adopt a starting point of 9 months’ imprisonment for Charge 11 and give D11 one-third reduction for his guilty plea.

29.  D22 has the benefit of being represented by Mr Kwan today.  Mr Kwan in mitigation informs me that D22 is now serving a total term of 11 months’ imprisonment in relation to four offences.  These matters, Mr Kwan says, have nothing to do with the undercover operation in question. 

30.  Mr Kwan submits that D22 does not have any triad-related conviction.  He is now 43 years old.  He was divorced in year 2010.  Because of his background, he was only able to work as a labourer in the past and sometimes he had to rely on CSSA for his living. Before his remand, he was living with his parents and his 1-year-old daughter.

31.  Mr Kwan urges me to sentence D22 for the offence he is facing.  The offence in question, although it had a triad overtone, the facts do not suggest the matter was involved with any triad matters.  D22 committed the offence because he was in need of money at the time as his wife was pregnant.  She needed to receive medical attention and hence in need of money. 

32.  D22 only received $500 reward.  He was very remorseful after he had splashed the paint to the Tsuen Wan property, so he pulled out from the agreement and he was not involved in the next splashing operation which was the subject matter of Charge 4.

33.  Mr Kwan urges me to take into account the guilty plea of D22 and pass a lenient sentence on him. Mr Kwan submits that since the birth of D22’s daughter, D22 has determined to turn a new leaf.  He wants to take care of his daughter as soon as possible. 

34.  In sentencing the defendants, I have taken into account the facts of this case and all the matters urged on their behalf by the counsel. 

35.  D22 conspired with others to splash paint against the walls of two properties, no doubt the conspirators intended to instil fear in the residents of the properties in question.  The acts of splashing paint against the walls, iron gates and wooden doors of the properties no doubt would put the residents of these properties in great fear.

36.  D3 was acting in concert with his co-conspirators, and the case had a triad overtone in it.

37.  On the facts before me, a starting point of 18 months’ imprisonment is appropriate.  D22 pleaded guilty to the offence, he is entitled to the usual one-third reduction.  For the reasons given on Charge 3, I sentence D22 to 12 months’ imprisonment. 

38.  The sentence should be made consecutive to the sentence that D22 is now serving. 

39.  When I sentenced D6 for Charge 6, my attention was drawn to the authority HKSAR v Choy Ka Fai and 4 others CACC195/2009.  As I indicated on the last occasion, the facts of the present case were quite different from the facts of Choy’s.  The present case was not just a case of blowing whistle or gathering power to show force. The defendants involved were embarking on a revenge attack against a hostile triad member.  They went to the residence of the target person, and in the course of their search for the target person, they had armed themselves with weapons.

40.  I am aware that D11 played the role of a foot soldier.  Had D11 played the role of an officer, no doubt a heavier sentence would be passed on him. 

41.  In 1998 D11 was convicted of three triad-related offences and he was sentenced to 6 months’ imprisonment.  In 1999 he was convicted of yet another three triad-related offences, he was sentenced to another term of 6 months’ imprisonment. 

42.  D11 is a repeated offender as far as triad-related offences are concerned.  A higher starting point is called for.   For this reason, I take a starting point of 21 months’ imprisonment for Charge 6.  Because of his guilty plea, I shall allow D11 a reduction of 7 months, and for the reasons given, I sentence D11 to 14 months’ imprisonment for Charge 6. 

43.  For Charge 11, I take 9 months’ imprisonment as the starting point.  D11 pleaded guilty before me and he is entitled to one-third reduction.  I sentence D11 to 6 months’ imprisonment for Charge 11.  And the sentence for Charge 11 is to run wholly consecutively to the sentence for Charge 6.