HKSAR v. CHUI WAI KEUNG

DCCC 345/2022

[2023] HKDC 158

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 345 OF 2022

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REASONS FOR SENTENCE

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Plea

1.  Upon his own plea and admission of facts, the Defendant is convicted on 3 charges, namely, assault occasioning actual bodily harm (Charge 1); possession of arms without a licence (Charge 2); and possession of instruments fit for unlawful purposes (Charge 3).  The subject matters of Charge 2 and Charge 3 are two stunning devices and one spray canister; and two pair of handcuffs respectively.

Admitted facts

Charge 1

2.  At the material time, X (“PW1”)  was a sex worker working in a one-woman brothel at a flat in Kwun Tong, Kowloon, in Hong Kong (“the Flat”). At around 6:13 pm on 12 December 2021, the Defendant (carrying a black backpack)  visited PW1 for sex services. After taking shower, the Defendant claimed that he was tired and requested to have massage as extra services. PW1 agreed and the Defendant paid a total of HK$800 for the requested services. After the massage, the Defendant requested to stay longer for more services but was refused by PW1. At all material times, only PW1 and the Defendant were inside the Flat.

3.  At or around 6:40 pm on the same day, PW1 was standing with her back towards the Defendant while getting dressed. Suddenly, PW1 felt that her neck was stunned by a hard object and some electric current flowed through her body. While she was falling onto the ground, PW1 felt that the hard object was still placed on her neck. PW1 immediately yelled. Other sex workers (PW2 - PW5)  in the neighbouring rooms and one man knocked on the door of the Flat. PW1 opened the door and the Defendant attempted to leave. They pushed the Defendant back to the Flat and reported to the police.

4.  PW1 asked the Defendant why he attacked her and the Defendant said “You look like my ex-girlfriend” to PW1.

Charge 2 and Charge 3

5.  At or around 7:05 pm on the same day, police arrived at the Flat.  The Defendant admitted that the backpack belonged to him. Upon search, the following items, inter alia, were found inside the Defendant’s backpack: a black baton-shaped stunning device with handle (30cm long)  (“E1”); a black torch-shaped stunning device (15cm long)  (“E2”); a spray canister (“E3”); and two pairs of silver handcuffs with keys (“E4 - E5”).

Arrest and Caution of the Defendant

6.  On 12 December 2021, the Defendant was arrested. Under caution, the Defendant stated that “I wanted to stun her (PW1)  so that she would faint and stay longer with me because she looks like my ex-girlfriend. I purchased other stuff from Mainland online.”

7.  In the subsequent video-recorded interviews, the Defendant stated, inter alia, the following under caution: the Defendant requested to have extra services again after the massage but was refused by PW1. Feeling upset, the Defendant picked up E1 from his backpack and stunned PW1 from the back.  The Defendant held E1 with his right hand and stunned the part below PW1’s neck. He pressed the button of E1 twice.  The Defendant stunned PW1 with E1 so that she would faint and could stay longer with him. After stunning PW1, the Defendant told her that he did so because PW1 looked like his ex-girlfriend.  E1 - E5 all belonged to the Defendant. He purchased E1 - E5 online from Mainland in September 2021.  The Defendant planned to use E1, E2 and E3 on his ex-girlfriend who owed him money and played with his feelings. The Defendant had lost contact with his ex-girlfriend.  The Defendant bought E2 first but did not know how to use it so he bought E1. He had no knowledge about the power and joule of E1 and E2.  The Defendant had never used E3 before but he knew that E3 would cause burning eyes and coughing.  E4 and E5 were for him to handcuff himself.

PW1’s Injuries

8.  PW1 was sent to the Department of Accident & Emergency of United Christian Hospital for medical treatment. Physical examination revealed that there was minimal redness over back of PW1’s neck. The diagnosis was “<1% superficial burn wound over back of neck”. PW1 was discharged on the same day with medication.

Examination of E1 and E2

9.  E1 and E2 were capable of generating electric arcs across the electrodes. The peak-to-peak pulsating output voltage and mean output voltage of a pulse measured across the resistor load were 3,321 volts and 301 volts respectively for E1, 8,771 volts and 779 volts respectively for E2. E1 and E2 were capable of generating 57,339 high voltage pulses and 1,793 high voltage pulses continuously in 3 seconds duration respectively.

10.  E1 and E2 were portable devices which were designed or adapted to stun or disable a person by means of an electric shock applied either with or without direct contact with the person. If E1 and E2 were applied to sensitive areas, such as the forehead, chest, carotid and spine, E1 and E2 can alter heart rhythms, cause severe pain, disrupt blood flow to the brain and/or stimulate motor neurons, resulting in stunning and disabling effects on the subject.

Examination of E3

11.  E3 was examined by Government Forensic Scientist. It was equipped with an operating button associated with a nozzle found at the top. When the button was pressed downwards, white liquid was discharged from the nozzle in the form of a fine spray. The liquid collected from E3 was found to contain nonivamide. Nonivamide is able to elicit burning sensation in the soft mucosal tissues which is thus qualified as a noxious chemical.

12.  At all material times, the Defendant assaulted PW1, thereby occasioning her actual bodily harm; had in his possession arms, namely two stunning devices and one spray canister containing noxious chemical, without a licence; and had in his possession instruments fit for unlawful purposes, namely two pairs of handcuffs, with intent to use the same for any unlawful purposes.

Mitigation and Sentence

13.  The Defendant is currently 48 years old, divorcee.  He was born in Hong Kong. He received education up to Secondary Three.  Until 2022, he worked as a printing worker and earned around $13,000 per month.  The Defendant produced letter of compliments from his employer and co-worker.

14.  As to his previous conviction, the Defendant has no similar conviction but he has one conviction in 2005 for shop theft for which he was fined $800.

15.  In mitigation, Mr Wong stressed the fact that the Defendant is a first-time offender for this offence, he entered his early guilty plea. The Defendant was very co-operative and tried to give explanations to the police at the earliest possible opportunity.  I have the benefit of reading cases cited by Mr Wong.    

Discussion

16.  Regarding Charge 1, a person convicted of this offence upon indictment is liable to imprisonment for 3 years.  There is no sentencing tariff for this offence.   The Defendant used the stunned device to attack the victim out of surprise, that must have produced traumatic experience to her.  Further, he attacked the victim as sex worker who is vulnerable to violence or bully.  This court considers that whilst an immediate custodial sentence is appropriate for this offence, the sentencing starting point is 9 months’ imprisonment.  As the Defendant has pleaded guilty, he is entitled to full one-third sentencing discount.  The Defendant is therefore sentenced to 6 months’ imprisonment for the 1^st Charge.

17.  Regarding Charge 2, apart from those cases cited by Mr Wong, I have also referred myself to the Court of Appeal decision in HKSAR v Mohamed P Shafik (unreported, 5 March 2015)  CACC 224/2014.  In that case, the Court of Appeal has said:

“29. In respect of Charge 3, the following general principles derived from the Court of Appeal’s judgments in HKSAR v Li Hung Kwan [2003] 1 HKLRD 204 and HKSAR v Fan Kwok Wai, CACC 264/2005, unreported, 10 October 2015, provide useful guidance.

30. First, as deterrence, an immediate custodial sentence is required for offences of this type. See HKSAR v Li Hung Kwan, at §17.

31. Second, the starting point to be adopted has to be considered in the light of the facts of each case. There is no tariff for the offence. See HKSAR v Li Hung Kwan, at §17; HKSAR v Fan Kwok Wai, at §8.

32. Third, while the court will take into account all the relevant circumstances of the case, important considerations which often arise are, firstly, the power of the weapon in terms of the voltage that it is capable of discharging; and secondly, whether there is evidence that the offender or some other person has used or may use the weapon for an unlawful purpose or to facilitate an unlawful activity. Even though there may be no present intent established on the part of the offender to use the weapon in any such unlawful way, where there is a real risk in the circumstances that the weapon will fall into the hands of someone who will use it for such purpose, that is also a factor which will result in a higher starting point of sentence. See HKSAR v Fan Kwok Wai, at §9.”

18.  In that case, the appellant was a bouncer and had the stun gun for his own protection.  It produced 145,000 volts if applied to a human body.  The Court of Appeal referred to the forensic medical report produced in the case and concluded that although the voltage that the stun gun can discharge is considerably higher than those found in other cases, it is not clear that it would cause greater harm to the human body correspondingly.  However, the Court of Appeal was of the view that the overall circumstances of that case is not so serious that it warrants a starting point as high as 30 months.  In the end, they reduced the sentence from 30 months to 24 months instead.

19.  In the present case, the voltage of the two stunning devices were 3,321 volts and 301 volts respectively for E1, 8,771 volts and 779 volts respectively for E2, which is relatively lower than other cases.  That said, the aggravating features of Charge 2 is firstly, the Defendant did use it (as opposed to level risk of using it in other decided cases)  and secondly, targeting at one-woman sex worker is an aggravating factor: HKSAR v Zhang Wei [2014] 6 HKC 599; Tam Kwok Keung [2011] 1 HKLRD 141.

20.  Further, I do not overlook another subject matter is the canister spray.  The liquid collected from it was found to contain nonivamide.  Nonivamide is able to elicit burning sensation in the soft mucosal tissues which is thus qualified as a noxious chemical.  This item alone warrants a sentence of not less than 6 months’ imprisonment: Chau Lap Pui CACC 358/2006.

21.  While the Defendant may be a good worker during daytime, the Defendant had his dark side towards sex worker and posed real danger to those in the same field.  This is a very serious matter and the Defendant must be punished accordingly.  In a nutshell, I consider that this charge warrants a starting point of 36 months and end up with 24 months after deducting one third for his guilty plea.

22.  Regarding Charge 3, while the Defendant asserted that the two handcuffs were for self-use, there is real risk that they could be used against the victim.  It did not make any sense that after shocking the victim with the stunning device, the Defendant should handcuff himself.  I consider a starting point of 12 months' imprisonment just and appropriate: HKSAR v Cheng Man Kit [2021] HKDC 660. With the timely guilty plea, the sentence is reduced to 8 months. I sentence the Defendant to 8 months' imprisonment for this charge.

Overall Sentence

23.  Charges 1 to 2 arose from the incident of attacking PW1.  Charge 3 (handcuffs)  posed a real risk to further attack or injury to the victim.  Bearing in mind the totality principle, I order the sentences to run in the following manner: Charges 1 and 2 concurrent; but 4 months consecutive to Charge 3.  Thus, arriving at a total prison term of 28 months for all 3 charges.