HKSAR v. HO TUNG SUM AND OTHERS

DCCC 907/2018, 167/2019 & 311/2019 (Consolidated)

[2019] HKDC 1627

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 907 OF 2018 & 167 & 311 OF 2019

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REASONS FOR SENTENCE

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1.  The four defendants jointly face one charge of wounding with intent[1] (Charge 1) and two charges of the common law offence of assault occasioning actual bodily harm[2] (Charges 2 and 3).

2.  D1, D2 and D3 pleaded guilty to all three charges and are sentenced as below.

SUMMARY OF FACTS

3.  The victims of the 3 respective charges, PW1, 2 and 3, were patrons at Lee Kwan Seafood Restaurant at Yau Oi Cooked Food Stalls in Tuen Mun in the early hours of 3 June 2018.

4.  At about 4:40 am, PW3 went to a nearby convenience store to get some cigarettes.  A man and a woman happened to be outside the store and PW3 took a look at them before continuing back to the restaurant.

5.  About 10 minutes later, the man entered the restaurant, approached PW3’s table and taunted him by asking him what he was looking at.  An argument ensued.  The man made a phone call and said to PW3 that he was going to bring people and told their group to stay there.

6.  PW3 called the police at the same time.

7.  When the man began to walk away, PW1 stood up and argued with him.  The man then left the restaurant.  The female friend who was dining with PW1, 2 and 3 also left the restaurant immediately.

8.  Another 10 minutes later, the man led a group of about 7 to 8 males, some of them wearing masks, into the restaurant started to attack the three victims with random items, including a mop, plastic chairs, beer bottles, teacups and eating utensils.

9.  The victims fought back, which also involved the use of eating utensils. The attack stopped after about 2 minutes.  When attackers were leaving the restaurant, the victims chased after them and continued to argue with them.

10.  One of the attackers threw a metal trolley found in the restaurant at the victims.  The group then left.

11.  CCTV captured parts of the attack.  CCTV footages from nearby residential estates led to the location of D1 and D2 and they were arrested in Tuen Mun on the same day at about 5:35p m.  D3 was arrested about 6 months later on 22 December 2018 while D4 was arrested about 8 months later on 21 February 2019.

12.  In subsequently held identification parades, all four defendants were identified by the victims as among the attackers that night.

INJURIES SUFFERED BY VICTIMS

13.  As a result of the attack, the victims suffered the following injuries:

14.  Victim of charge 1 PW1 Mr Lau suffered two deep laceration wounds on his scalp; depressed skull fracture in the top of the head with small amount of acute subarachnoid haemorrhage on the left side of the head; left craniectomy[3] for debridement of compound skull fracture was performed on the same day.  He was discharged from hospital 8 days later on 11 June 2018.

15.  In the later victim impact report of Mr Lau dated 5 November 2019, Dr Tang briefly recounted the procedure that Mr Lau had gone through and remarked that Mr Lau still complained of occasional headache and deficit in short term memory.  There does not appear to be any permanent injuries or damage otherwise.

16.  Victim of charge 2 PW2 Mr Yeung suffered abrasion wounds to his right elbow, right index finger, left thumb and right heel.  There was also tenderness at his lower back and right elbow.  He was discharged from hospital on the same day.

17.  Victim of charge 3 PW3 Mr. Lui suffered a 1.5cm superficial laceration over his front scalp and minor abrasions on both wrists. He was also discharged on the same day.

PREVIOUS CONVICTIONS

D1

18.  D1 is of previously clear record.

D2

19.  D2 has one previous conviction dated 5 September 2016, when he was 17 years old, for the offence of Robbery and was sentenced in the District Court to detention in a rehabilitation centre.  He was last released from detention on 28 April 2017, which is about 14 months before he committed the offences in the present case.

20.  D2 is also the subject of an ongoing investigation involving the offence of acting as a member of a triad society.  He committed the present offences whilst on police bail for that case.

D3

21.  D3 has 9 previous convictions from 7 court appearances.  5 of those are related to violence.

22.  D3 was first convicted of theft and criminal intimidation in March 2012 when he was 12 and a half years old. He was sentenced to 12 months’ probation.

23.  3 months after the said convictions, the defendant was convicted of assault occasioning actual bodily harm in June 2012, and his probation period was extended to 33 months.

24.  Slightly less than 2 years later in March 2014, when he was 14 and a half years old, the defendant was again convicted of assault occasioning actual bodily harm and was sentenced to detention in a detention centre.  The Probation Order was ordered to be discharged. 

25.  On 12 May 2015, the then 15 years and 8 months old defendant was convicted of trafficking in dangerous drugs and was sentenced to detention at a training centre.  He was sentenced 13 days later for assault occasioning actual bodily harm and claiming to be a member of a triad society to concurrent sentences of detention in a training centre.

26.  On 24 December 2018, when the defendant was 19 years old, he was convicted of resisting a police officer and sentenced to 4 weeks’ imprisonment. He was also fined on the same occasion for failing to produce proof of identity on demand.

MITIGATION

D1

27.  D1 is 22, single, educated up to Form Four level in Hong Kong.  He lives with his parents and brother in a public housing unit in Tuen Mun.

28.  The defendant worked as a warehouse worker after leaving school, earning $18,000 per month.  His father is a ship repair worker while his mother works as a cashier.  The defendant’s younger brother is working, but the defendant does not know the nature of his work.

29.  The defendant’s social worker informed the court that the defendant came across as someone willing to take responsibility for what he has done.  The defendant is also a filial son who cares about his family and younger brother, frequently asking about his brother during their interviews and worrying about him affecting his brother’s work and life.  The defendant was also concerned how the family was getting on without his financial contribution.

30.  When asked about the defendant’s future plan, his first reaction was to go on a proper trip with his family, so that they can spend some quality time together, showing how much the defendant cherishes his family.  Mr Ma suggests that the defendant found being away from his family particularly punishing.

31.  The defendant is also someone always prepared to help out his friends.  A drawing he made for the social worker shows the defendant’s talent.

32.  In mitigation, Mr Stephen Ma told the court that on the night of the incident, the defendant was drinking and entertaining with his friends.  D1 has known the other defendants for a long time, but he did not know the man who first had the argument with PW3.

33.  What happened was that, while D1 was with his friends and some other unknown people drinking and entertaining, one of them received a phone call from the man.  D1 heard that the man’s girlfriend was being bullied and might be attacked.  Since they were all at a bar nearby, the person receiving the phone call told D1 and the others to follow him to go to the man.

34.  By that time, D1 had had a lot to drink and was quite drunk.  Under the influence of the other defendants and alcohol, D1 decided to go along, not knowing that there will be a fight.  D1 was following the others and was walking near the rear of the group.

35.  When they were at the restaurant, D1 heard people in front talked a few sentences and then they began to attack each other.  Seeing that, D1 also took part by picking up some eating utensils and throwing them towards the other side, just like what everyone else was doing.  He did not have any actual bodily contact with others.

36.  After the fighting had lasted for a while, D1 got scared and asked the other defendants to leave together.  In the end, he did leave the scene with D2.

37.  The picture that Mr Ma attempts to paint is that D1 is just an idiotic youngster with a previously good character who got caught in the moment and deserves to be given a chance.

D2

38.  D2 is 20 years and 4 months old.  Born in Hong Kong and single.  He lives with his parents and elder sister.

39.  The defendant left school without completing Form 4.  He worked in a logistic company and then became a kitchen apprentice at different restaurants earning about $14,000 per month.  The defendant would contribute $5,000 towards his parents’ living expenses.

40.  On the night of the offences, the defendant was drinking with his friends when one of them received a phone call from someone, telling them that D4 was being attacked.  D2 had no knowledge about the attack and just followed everyone to see what was going on.

41.  When they arrived, things became chaotic and both sides were fighting.  Although D2 did take part, he also tried to steady one of his friends’ emotions and pulled him aside.

42.  The fighting stopped after a short time and the defendant’s group started to leave, but then the victims’ group gave chase and fighting resumed.  The defendant understands that what he did was wrong and that one of the victims suffered serious injuries.

43.  The defendant fully accepts that he will be facing a term of imprisonment.  During his present remand, he had had time to reflect and realized that his parents love him dearly.  The defendant took part in religious activities and is learning to adopt the right attitude in life.

44.  Ms Lai referred to the case of HKSAR v Hung Gar Chun (熊家駿), CAAR 9/2010 where the respondent was sentenced to 9 months’ imprisonment after trial for using a fruit knife he bought, after being displeased with the victim’s attitude of not allowing the defendant to see his younger sister, to stab the victim once.  The victim suffered a deep laceration with massive internal bleeding.  The victim’s spleen had to be removed, permanently affecting his immune system, rendering him constantly fatigued.

45.  The Court of Appeal found the use of a lethal weapon, some degree of premeditation, serious harm suffered by the victim and the severity of the offence warranted a heavier sentence.  Having acknowledged that the sentences for the offence of ‘wounding with intent’ should be within the range of 3 to 12 years[4], the court found that the appropriate sentence should be 30 months’ imprisonment, given it was a case of the prosecution reviewing the sentence of the trial judge.

D3

46.  D3 is 20 years old, educated up to Form One level.  He was working as a hair stylist apprentice at the time of the offences.  He is single and lives with his father, stepmother and elder brother.

47.  Mr Cheung told the court that on the day of the incident, D3 was drinking with his friends on his day off. D3 was already inebriated when one of his friends received a phone call from someone, telling him that another friend had been injured in a fight.  They therefore went to see what was going on and in the process a fight ensued. D3 joined the fight and committed the present offences out of impulse.

48.  D3 was 18 years old at the time.  He indicated his pleas of guilty early on.  He had written a letter in mitigation telling the court that in the 9 odd months that he has been incarcerated, he had reflected on his life and realized that he wanted to improve himself, but because of his education background, he would not be able to meet the minimum qualification requirement for most vocational training courses.  Nevertheless, the defendant is remorseful and promises to turn a new leaf upon release.

49.  Mr Cheung referred to 3 cases to assist the court in sentencing: HKSAR v Lam Wai Tak (林惠德) and two others, CACC 248/2003; HKSAR v Tam Gar Kit (譚家傑), CACC 191/2015; and HKSAR v Lee Ming Tung and three others, DCCC 381/2017.

50.  Lam Wai Tak was a trial heard in the Court of First Instance.  The facts are entirely different and the Court of Appeal specifically stated that the sentences they adopted were unique to the circumstances.  As such, it is not helpful to sentencing D3 in the present case.

51.  In Tam Gar Kit, the appellant was convicted after trial of one charge of wounding with intent and one charge of assault occasioning actual bodily harm.  There the appellant was 20 years old at the time of the commission of the offences.

52.  The facts of that case are that, the appellant’s friend had an argument with the two victims and was beaten up a few days before the attack.  The appellant gathered a group of people to avenge his friend by attacking the two victims.  They went together to the scene of the attack and no less than 6 people attacked the victims with wooden sticks.  One of the victims had to receive craniectomy and was hospitalized for 10 days.  The other suffered bone fractures in his palm and was hospitalized for 4 days.  There was no permanent damage.

53.  The original sentence of 57 and 24 months’ imprisonment, with a final total sentence of 5 years and 3 months, was found to have been imposed upon the trial judge wrongly taking into consideration that provocation was an aggravating factor and that the attack had triad connotation.  Sentences of 4 years and 18 months were substituted for the two charges, with a final sentence of 4 and a half years upon part of the sentence in the second charge being made concurrent.

54.  In Lee Ming Tung, the four defendants, together with around 6 others, attacked the victims.  One of the defendants used a metal pipe to hit the head of one of the victims, while the others punched and kicked them.

55.  The assaults caused the victim of the wounding with intent charge to lose consciousness.  The attackers then took away the shorts (with his wallet inside) and underpants the victim was wearing, leaving him lying half naked in the park and then fled.

56.  The victim suffered multiple abrasions, bruises on his face, palms, abdomen and left leg.  He was hospitalized for 12 days.  An MRI was conducted and it was confirmed that he had suffered subarachnoid haemorrhage and diffuse axonal injury to the cerebellum (a form of brain injury following head trauma).

57.  My learned brother referred to the cases of Lam Wai Tak and Tam Gar Kit above and pointed out that the starting points there for the wounding with intent charge were both 4 years’ imprisonment.

58.  He then took into consideration the young age of the defendants, being 16 to 18 years old, and 15 to 17 at the time of the offence, with either a clear or very light criminal conviction record, their early indication of plea and decided to deal with them as leniently as the law would allow.

59.  There first defendant there, with one record for robbery and the one who used the iron pipe to attack the victim’s head, was sentenced to 28 months’ imprisonment after adopting a starting point of 3 and a half years’ imprisonment.

60.  For the second defendant there, whom the judge found to be of lesser culpability and with a clear record, a starting point of 3 years 3 months’ imprisonment was adopted.  A discount was granted on the basis of assistance given to the authorities, leading to a final sentence of 21 months’ imprisonment.

61.  For the third and fourth defendant there, both with just one previous conviction where they were sentenced to probation, the judge adopted a starting point of 3 years and 3 months’ imprisonment, resulting in a sentence of 26 months’ imprisonment after plea.

62.  In our present case, a training centre report was ordered to be prepared on D3.  It is, however, D3’s wish to be dealt with by way of imprisonment rather than detention in a training centre.

SENTENCE

63.  The maximum sentence on conviction upon indictment for the offence of wounding with intent is that of life imprisonment.

64.  The maximum sentence under s 39 of the Offences Against the Person Ordinance is that of 3 years’ imprisonment.

REPORTS

65.  Given the age of the defendants and the circumstances of their commission of the present offences, despite the wounding with intent charge being an excepted offence[5] and hence s 109A of the Criminal Procedure Ordinance, Cap 221 does not apply and imprisonment does not have to be the last sentencing option, I ordered reports be prepared on each of them to assist in sentencing.

D1’S BACKGROUND REPORT

66.  D1 was already 22 years and 4 months old at the time of conviction, he is not eligible for detention in a training centre[6]. Given that these are his first convictions and given the circumstances of the commission of the offences, I find it prudent to call for a background report before sentencing D1.

67.  According to the report, D1 was brought up in a working class family with inadequate and ineffective parental supervision.  His parents had to work and so he was left with his grandparents.  D1 got acquainted to some dubious peers in his secondary school days and turned wayward under their influence, leading a loose life with no stable employment upon quitting school after completing Form 4.

68.  D1 told the probation officer that he committed the present offences under the influence of alcohol, but he is willing to bear the consequences.

69.  D1’s parents, especially his mother, are committed to the defendant and have been supporting and encouraging him during his present remand.

D2’S TRAINING CENTRE REPORT

70.  D2 was 20 years and 4 months old at the time of conviction and would still be eligible for detention in a training centre.

71.  According to D2’s training centre report, he was brought up in a working class family with insufficient parental guidance and supervision.  The defendant’s conduct at school took a down turn after his mother started to work in 2012.  He got to mingling with some triad affiliated peers and became a member in mid-2014.  His lack of interest in school and poor conduct led to him quitting school after completing Form 3 in 2015.  The defendant kept company with his dubious peers and led an idle life thereafter.

72.  D2 then committed the various offences that he had been sentenced for.  He was able to comply with the rules and made fair progress while being detained in a rehabilitation centre, and was able to work as a kitchen helper after receiving relevant training in 2017.

73.  He managed to finish his rehabilitation and went through the statutory one-year supervision period without incident.  Unfortunately, upon the expiration of his supervision period in April 2018, D2 soon re-associated with his former triad peers, eventually leading to the commission of the present offences in June 2018.

74.  It is Officer Lo’s finding that D2 is mentally and physically fit for detention in a training centre, and he considers him suitable to be so detained.

D3’S TRAINING CENTRE REPORT

75.  D3 was 20 years old at the time of conviction.  He had been sentenced to a term of imprisonment of 4 weeks in 2018.  That was the only occasion when he was imprisoned.  There was a 3 year period between his last detention in a training centre in 2015 and commission of that latest offence in 2018. It would appear that the detention might have helped D3 and I wanted to find out what the relevant officers’ opinions are.  A training centre report was ordered.

76.  According to the report, D3’s mother left the family when the defendant was 2 years old.  The defendant’s father was busily engaged in his work and the defendant was looked after by his paternal grandparents.

77.  Supervision was lacking and the defendant mingled with some dubious peers and became rebellious.  He did not disclose his association outside, nor his personal feelings to his family and they keep a distant relationship.

78.  The defendant was not fond of studying and did not do too well in school.  He was left unattended most of the time and he began loitering in public parks and playgrounds in Tuen Mun after school.

79.  The defendant began using ketamine in June 2011 under the influence of one of his peers.  He continued to use it occasionally until he was given a Superintendent’s Caution for smoking a dangerous drug.

80.  The defendant’s school performance further deteriorated after his promotion to Form One.  He spent most of this time after school with his peers and maintained a carefree attitude, eventually leading to his first criminal convictions in 2012 when he was 12 and a half years old.  The defendant was put on probation and was ordered to stay at a juvenile home.

81.  In March 2013, the defendant had to repeat form one.  He continued to pay no attention to his studies while engaging in nocturnal activities with his peers.  His probation order was extended as a result of another offence and he was ordered to study in a boarding school in September 2013.  The defendant failed to attend school from late October 2013 onwards and indulged in nocturnal activities.  He was arrested for another violence related offence in December 2013.  He was ordered to be detained in a detention centre in March 2014.

82.  Upon his release, and during the supervision period, the defendant was arrested for assault and claiming to be a member of a triad society in December 2014.  He further committed the trafficking in dangerous drugs offence and subsequently other offences and was sentenced to be detained in a training centre in May 2015.

83.  D3’s performance in the training centre was fair and he was released on 27 September 2016.  During the statutory 3-year supervision period, he worked as a kitchen assistant, waiter, salon apprentice and assistant at a barbeque site.  He was, however, unable to remain in the same job for long.

84.  Meanwhile, D3 re-associated with his dubious peers and soon relapsed into using ketamine in late 2017.  Under their adverse influence, the defendant committed the present offences in June 2018 and was put on the wanted list.

85.  As a result of D3’s poor supervision performance, a recall order was issued in July 2018.  During the period when D3 had absconded, he had quit his job at the barbeque site and became engaged to drug trafficking in July 2018.

86.  In December 2018, he was arrested for resisting a police officer and failing to produce proof of identity on demand and sentenced to 4 weeks’ imprisonment and fined.  He was recalled by the training centre upon his release from jail.  He had completed his recall treatment on 24 May 2019 and was then remanded in Pik Uk Correctional Institution to await disposal for the present offences.

87.  It is Officer Kwong’s finding that D3 is mentally and physically fit for detention in a training centre, and that from the information available and after a general assessment of his behavior and attitude while on remand, he is suitable to be so detained.

SENTENCES

D1

Charge 1: wounding with intent

88.  Given the seriousness of the injuries suffered by the victim, given the fact that the offence was committed by the defendant together with about 5 to 6 others, despite there being no use of lethal weapons such as knives, and despite his age and clear record, I find that a term of imprisonment is the only appropriate sentence for D1 in the circumstances.

89.  Bearing in mind the usual sentence of 3 to 12 years imprisonment for the offence, the sentences passed in the above referred to cases, and taking into consideration all the circumstances of the present case, including the fact that none of the victims suffered any permanent injuries, and in particular his previously clear record, I adopt a starting point of 3 years’ imprisonment.  D1 is granted the full one-third discount for his guilty plea, and sentenced to 2 years’ imprisonment.

Charges 2 and 3: AOABH

90.  As for charges 2 and 3, I adopt a starting point of 12 months’ imprisonment, leading to a sentence of 8 months’ imprisonment after plea.

TOTALITY

91.  Given the circumstances of the commission of the offences, I find that the sentences in charges 2 and 3 should be served wholly concurrently to the sentence in charge 1.

92.  The final total sentence for D1 is, therefore, 24 months’ imprisonment.  I would just add that, having had the opportunity to hear from D1 directly, I am convinced that he is genuinely remorseful and has shown determination in picking himself up after this ordeal and trying his best to better himself.

D2

Charges 1, 2 and 3

93.  In relation to D2, it would appear that he is someone who might benefit from stringent supervision while he learns to be responsible for his behavior and try to develop into an adult.  The previous stint of detention in the rehabilitation centre appeared to have achieved some short term positive result.  He was able to comply with the rules and managed to be trained enough to be arranged to work in a restaurant.

94.  Ms Lai for D2 drew my attention to the Magistracy Appeal case of R v Choi Chi Ming, HCMA 1034/1991, and submitted that despite the training centre report recommending detention, it is ultimately for the sentencing judge to decide on the appropriate sentence.

95.  She further pointed out that given the fact that the defendant has already been in custody for some 18 months, and since the usual period of detention in a training centre is typically 18 months to 3 years, the total period of detention of 36 months would have far exceeded the term of imprisonment in case involving circumstances like the present one, with a notional starting point of 54 months’ imprisonment.

96.  I find that this is indeed an important factor to consider and it is to be the sole basis of my choosing to impose a prison sentence and not a training centre order on the defendant.

97.  Furthermore, having had the opportunity to talk with D2 directly in court, I am convinced that he is truly remorseful for his misdeeds and that he is determined to turn a new leaf after the present remand.

98.  Therefore, taking into consideration the fact that D2 has been in custody for almost 18 months, and having had the benefit of the detailed training centre report prepared by Officer Lo, I am satisfied that the most appropriate sentence to deal with D2 is by way of an immediate custodial sentence instead of detention in a training centre.

D2: Charge 1

99.  Given the seriousness of the injuries suffered by the victim, given the fact that the offence was committed by the defendant together with about 5 to 6 others, despite there being no use of lethal weapons such as knives, and bearing in mind the usual sentence of 3 to 12 years imprisonment for the offence, the sentences passed in the above referred to cases, and taking into consideration all the circumstances of the present case, including the fact that none of the victims suffered any permanent injuries, I adopt a starting point of 3 years and 3 months’ imprisonment in relation to D2.  The higher starting point is a reflection of this not being D2’s first conviction involving violence.

100.  As mentioned above, D2 committed the present offences whilst on police bail pending investigation for another unrelated case.  For this aggravating factor, I will enhance his sentence by 3 months, leading to a sentence of 3 and half years’ imprisonment.  The defendant is granted the full one-third discount for his guilty plea, resulting in a sentence of 28 months’ imprisonment after plea for charge 1.

D2: Charges 2 and 3

101.  As for charges 2 and 3, I adopt a starting point of 12 months’ imprisonment each, discounting them to 8 months’ imprisonment upon D2’s guilty pleas.  I order that these sentences be served wholly concurrently to D2’s sentence in charge 1.

102.  D2 is, therefore, sentenced to a total of 28 months’ imprisonment for all 3 charges after plea.

D3

Training Centre or not

103.  Similar to D2, I have given much thought to whether I should impose a training centre detention order on D3.

104.  The defendant left school early and, as he recognized in his letter, he would not be able to enroll into courses because of the lack of qualification.  Detention in a training centre might allow the defendant to continue to try to develop a skill set in a particular trade and hopefully will allow him to be able to obtain gainful employment eventually.

105.  If the defendant is sentenced to a term of imprisonment, he will serve his sentence and upon rejoining society, he may find himself in the same position as he had been in before, with no skills and no qualification.  Given his history, it is not difficult to picture him being driven back to his old way of life and this may not be the last time that he loses his freedom.

106.  Be that as it may, and for the same reasons given above, I find the fact that D3 has been in custody for some 11 months an important factor to consider, and I do choose to impose a prison sentence instead of a training centre order to ensure that D3 is fairly sentenced.

107.  Just as with D2, having had the benefit of hearing from D3 directly in court, I am convinced that his remorse is genuine.  D3 seemed open to the court’s suggestion that he should try to find some kitchen work first upon release, and then when he is more settled, he can proceed to look for other job opportunities, in particular work that relate to motor vehicle maintenance, which is something he enjoys doing.

D3: Charge 1

108.  Based on the same reasons given in relation to D2’s sentence on charge 1, I adopt a starting point of 3 years and 3 months’ imprisonment in relation to D3.  Again, the slightly higher starting point being a reflection of this not being D3’s first offence involving violence.

109.  D3’s sentence on charge 1 is 26 months’ imprisonment after plea.

D3: Charges 2 and 3

110.  I adopt the same 12 months starting point for charges 2 and 3, granting D3 the full one-third discount for his guilty pleas, and order the two 8 month sentences to be served wholly concurrently with the sentence in charge 1.

111.  D3 is, therefore, sentenced to a total of 26 months’ imprisonment for the 3 charges.