HKSAR v. YEUNG CHUN SING AND OTHERS

DCCC 404, 463, 604 & 1054/2023 (Consolidated)

[2025] HKDC 811

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 404, 463, 604 & 1054 OF 2023 (CONSOLIDATED)

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REASONS FOR SENTENCE

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1.  There are 19 defendants in this case. The Consolidated Charge Sheet contains 12 charges.

2.  Only 12 of the defendants appear before this Court for plea and sentence. They are D3, D4, D6, D8, D9, D10, D11, D12, D13, D14, D16 and D18.

3.  The remaining 7 defendants (i.e. D1, D2, D5, D7, D15, D17 and D19)  plead not guilty to their respective charges and will stand for their trial. They do not appear and take no part in these proceedings.

Pleas of the Defendants herein

4.  D3 faces one charge, i.e. Charge 9.  He pleads guilty.

5.  D4 faces one charge, i.e. Charge 8.  He pleads guilty.

6.  D6 faces two charges, i.e. Charges 1 and 5. He pleads guilty to both charges.

7.  D8 faces one charge, i.e. Charge 8. He pleads guilty.

8.  D9 faces four charges, i.e. Charges 4, 5, 8 and 9.  He pleads guilty to Charges 4, 5 and 8, but not guilty to Charge 9.

9.  D10 faces one charge, i.e. Charge 8. He pleads guilty.

10.  D11 faces two charges, i.e. Charges 9 and 10. He pleads guilty to Charge 9, but not guilty to Charge 10.

11.  D12 faces one charge, i.e. Charge 6. He pleads guilty.

12.  D13 faces one charge, i.e. Charge 2. He pleads guilty.

13.  D14 faces one charge, i.e. Charge 6. He pleads guilty.

14.  D16 faces two charges, i.e. Charges 5 and 7. He pleads guilty to Charge 5, but not guilty to Charge 7.

15.  D18 faces two charges, i.e. Charges 5 and 8. He pleads guilty to both charges.

The Offences

16.  This Court is therefore only concerned with Charges 1 to 10[1].

17.  Charges 1, 2 and 10 are each for the offence of claiming to be a member of a triad society, contrary to section 20(2)  of the Societies Ordinance, Cap. 151.  Each charge is against one defendant only.  Charge 1 is against D6, Charge 2 is against D13, and Charge 10 is against D11.

18.  Charges 4 and 7 are each for the offence of common assault, contrary to Common Law and punishable under section 40 of the Offences against the Person Ordinance, Cap. 212. Charge 4 is a joint charge against 3 defendants, i.e. D9, D15 and D19. Charge 7 is also a joint charge but against 4 defendants, i.e. D1, D15, D16 and D19.  As stated before, D15 and D19 take no part in these proceedings.

19.  Charge 5 is for the offence of criminal damage, contrary to sections 60(1)  and 63(2)  of the Crimes Ordinance, Cap. 200. It is a joint charge against 7 defendants, i.e. D1, D2, D6, D9, D16, D18 and D19.  As stated before, D1, D2 and D19 take no part in these proceedings.

20.  Charge 6 is for the offence of conspiracy to commit criminal damage, contrary to sections 60(1), 63(2), 159A and 159C of the Crimes Ordinance, Cap 200. It is a joint charge against 3 defendants, i.e. D12, D14 and D19.  D19 takes no part in these proceedings.

21.  Charges 8 and 9 are each for the offence of acting as members of a triad society, contrary to section 20(2)  of the Societies Ordinance, Cap. 151.  Charge 8 is a joint charge against 6 defendants, i.e. D4, D5, D8, D9, D10 and D18.  Charge 9 is a joint charge against 8 defendants, i.e. D1, D3, D7, D9, D11, D15, D17 and D19.  Those take no part in today’s proceedings are D1, D5, D7, D15, D17 and D19.

22.  D3, D4, D6, D8 to D14, D16 and D18 admit the summary of facts presented by the prosecution. 

23.  Upon the guilty pleas entered by the respective defendants herein as well as the facts admitted by them,

(a)  D3 is convicted of Charge 9;

(b)  D4 is convicted of Charge 8;

(c)  D6 is convicted of Charges 1 and 5;

(d)  D8 is convicted of Charge 8;

(e)  D9 is convicted of Charges 4, 5 and 8;

(f)  D10 is convicted of Charge 8;

(g)  D11 is convicted of Charge 9;

(h)  D12 is convicted of Charge 6;

(i)  D13 is convicted of Charge 2;

(j)  D14 is convicted of Charge 6;

(k)  D16 is convicted of Charge 5;

(l)  D18 is convicted of Charges 5 and 8.

24.  Upon the conviction of D9, D11 and D16 as aforesaid, and pursuant to the agreements made between the prosecution and these defendants respectively, this Court orders that Charge 9 in so far as it is against D9, Charge 10 against D11, and Charge 7 in so far as it is against D16 are to be left in the Court file, and that these respective charges against D9, D11 and D16 are not be proceeded with unless with the leave of this Court or that of the Court of Appeal.

Facts

25.  The facts to be recited will refer to some defendants who take no part in today’s proceedings, but the defendants herein admit that these other defendants were involved in the manner as described in the summary of facts. The facts admitted by the defendants herein are of course not evidence in the imminent trial of these other defendants unless they give evidence to the same effect in that trial.

26.  In a police undercover operation that took place from June 2014 to May 2016, PC13838 (PW1)  infiltrated into a triad society to collect evidence and witnessed the following events. 

Charge 1 (against D6)  and Charge 2 (against D13)  – Claiming to be a member of a triad society

27.  In the evening on 17 September 2014, PW1 was queuing up outside Tuen Mun Town Plaza to purchase iPhones.  At about 10:59 p.m., about 10 to 15 men tried to jump the queue.  D6 and D13 stopped two of these men.  D6 asked them whether they wanted to jump the queue. One of the men replied that they just wanted to make a living.  D6 then said in reply, “We belong to ‘Fei Kit’ of ‘Lam Tei Lo Sun’, go elsewhere if you want to make a living.” (Charge 1). D13 added, “We ‘Lam Tei Lo Sun’ do not treat others, go away.” (Charge 2).  These two men then went away with the other 10 odd men in their group.

28.  According to the triad expert, ‘Lo Sun’ means the triad society ‘Sun Yee On’, and “Lam Tei Lo Sun’ means the faction of ‘Sun Yee On’ at ‘Lam Tei’.

Charge 4 (against D9)  – Common assault

29.  At around 4:20 p.m. on 20 November 2014, D9 gave $20 to PW1 and instructed PW1 to buy 8 surgical masks.  PW1 made the purchase as instructed at a nearby convenience store.

30.  Upon leaving the store, PW1 saw D9 and D15 standing next to the trunk of a private car with registration mark SE811 (“SE811”).  When PW1 was approaching them, he saw D9 taking out two wooden sticks (each 1.5 feet long)  from the trunk of the car, and D15 used a shirt to wrap up the wooden sticks.  D9, D15 and PW1 then went to a nearby snooker centre where they joined D19 and another person named Cheng (“Cheng”).

31.  In the snooker centre, D9 told PW1 and D15 that they would help the “society” beat up a scaffolding worker in orange clothing at the scaffolding works nearby, and that they should tell the worker that it was his boss who caused him to be beaten. PW1 said that he did not want to do it.  D19 immediately scolded PW1.

32.  At 4:50 p.m., D9, D15, D19, Cheng and PW1 left the snooker centre.  They met up with another person named Lui (“Lui”)  across the street.  Cheng asked Lui to assist in the beating.  Cheng instructed Lui and D15 to use the wooden sticks in the beating. Cheng also told them to flee towards a particular direction after the beating so that Cheng and D9 would pick them up by car.

33.  D15 then gave one of the wooden sticks to Lui, and everyone there put on their masks.  D15 and Lui then proceeded to the scaffolding works outside The Ulferts Warehouse Centre at No. 4 Kin Fat Lane with the wooden sticks, and PW1 followed them. Meanwhile, Cheng boarded the driver seat of a private car with registration mark RN6842, and D9 boarded the driver’s seat of SE811.  At that time, there were many pedestrians and vehicles at the scene.

34.  When D15 and Lui reached the outside of The Ulferts Warehouse Centre, Lui approached a worker in orange clothing and hit the worker’s back with his wooden stick, while D15 hit another worker’s head with his wooden stick.  The worker in orange clothing ran away at once. The attack lasted for about 10 seconds. 

35.  PW1 then shouted that there were police.  Lui and PW1 immediately ran away and took a taxi to Tseng Tau Tsuen.  15 minutes after their arrival there, D9 drove SE811 and picked up Lui.  D9 also instructed PW1 to look for D15 across the road. After meeting up with D15, PW1 was told by D19 over the phone and they should go to D19’s place of abode.  PW1 and D15 then went to D19’s home.

36.  PW1 then had dinner at D19’s home. After dinner, D19 gave $300 cash to PW1 and said to PW1, “You help the ‘society’ do a job, you will get paid”.

Charge 5 (against D6, D9, D16 and D18)  - Criminal damage

37.  At about 7:21 p.m. on 29 November 2014,  PW1, D6, D9, D16, D18, D19 and a few others gathered at 44 Yan Oi Tong Circuit.  A man surnamed Wong (“Wong”)  asked them, “Who would smash the pharmacy later?”  In response to Wong, D9 pointed at PW1, D1, D16, D18 and a person named Le (“Le”)  and said they would do it.  Wong then placed a pile of cash on a table and told the group of PW1, D1, D16, D18 and Le to share the money. D9 then passed the pile of cash to Le, and said that since the newly opened pharmacy at Yan Ching Street had not paid any protection fee, Le should lead the group to smash the pharmacy, and that everyone had to take part in the smashing. D19 added that the job was done for the ‘society’, and that those who failed to carry out the job would be punished by the ‘society’. Wong added that he guaranteed that whoever helped the ‘society’ would gain recognition in the ‘society’.

38.  D9 then led the group to a nearby flowerbed to check on a large black rubbish bag which contained: (a)  4 baseball bats (each 3 feet long), (b)  several surgical masks, and (c)  several pairs of gloves. D9 told them to wait at the flowerbed and not to go away.

39.  At 7:56 p.m. on the same day, D9 told the group that they could get going. Le then immediately distributed the masks, gloves and baseball bats to PW1, D16 and D18. They then proceeded to Yan Ching Street. Meanwhile, D2 who was acting as a lookout told the group to act quickly as there was no police at that time. 

40.  Le then entered the pharmacy, shouted loudly that “those who are not related, go away”, and smashed a glass cabinet with a baseball bat. D18 was the second person to enter the pharmacy, and smashed several display shelves.  D16 was the third person to enter, and smashed the items inside the pharmacy with a baseball bat. PW1 was the last one to enter the pharmacy and yelled “run”. D16, D18, Le and PW1 then fled the scene.  The whole criminal damage episode lasted for about 10 seconds.

41.  The group then ran to the footbridge of Yan Oi Tong Circuit where D1 collected the baseball bats from them and put the bats into a large rubbish bag.  Afterwards, D16, D18, Le and PW1 continued to run to San Sau Street while removing their tops, masks and gloves. 

42.  About 3 minutes later, D6 drove a car to San Sau Street with D1 and another person on board. D6 told that other person to take the baseball bats inside the trunk of the car and bring them to a village office. D6 also asked Le to give out cash to everyone.  PW1 and D1 then each received $400 cash.  PW1 and D1 then left the scene.

43.  Later that evening, D19 told PW1 that Wong was very happy that the pharmacy incident was all over the news, and that “big brother” would give PW1 $300 more.  PW1 then received another $300 cash from D19 for the job.

Charge 6 (against D12 and D14)  – Conspiracy to commit criminal damage

44.  At about 11:15 p.m. on 4 December 2014, PW1 attended a restaurant as instructed by D19 over the phone. D19 later told PW1 to go to “Kam Po” (which was the name of a game centre)  and checked whether the rear ladders / rear staircases on the first and the second floor had been locked. PW1 then took a taxi there.

45.  Upon arrival at “Kam Po”, PW1 reported to D19 that both rear staircases had been locked.  D19 then instructed PW1 to check whether there were police nearby.  PW1 then bumped into D1, who told PW1 that he was instructed by D19 to partner with PW1 to act as lookouts, but that he had no idea of what was going on.  They then bumped into D2 and Le.  D2 told D1, PW1 and Le that he would stand at the junction of two roads, and told them to scatter elsewhere.  D1 and Le then went near a jockey club, and PW1 went to a carpark at the back.

46.  PW1 later received a call from D19 asking for updates of the situation at the scene.  D12 joined in the call and told PW1 to check whether there were two large hammers inside a nearby meter room.  PW1 compiled and found two iron hammers (each 4 feet long, and the heads of the hammers were wrapped with a red plastic bag)  inside the meter room.  Subsequently, D19, Cheng and D12 each called PW1 from time to time to enquire about the situation at the scene.

47.  At 00:47 a.m. on 5 December 2014, Cheng called PW1 and asked PW1 to check whether police were at Kin On Street. After PW1 told Cheng of the situation, two private cars arrived at Kin On Street.  The first private car was black in colour and was driven by Cheng. Its licence plate was partially covered.  D19 sat on the front passenger seat, while D14 and another person sat at the rear passenger seats.  Behind the first private car was another private car grey in colour.  Its licence plate was also partially covered. It was driven by a male with 3 passengers on board, one of them was D12.  At that time, all the persons on board these two private cars were putting on surgical masks, gloves and hoods.

48.  D19 and D12 later alighted from the vehicles and walked towards the rear staircase of Kin Wing Commercial Centre.

49.  At 00:49 a.m., D14 and 3 others alighted from the vehicles, and walked towards the main entrance of Fulum Fisherman’s Wharf Restaurant (“the Fulum Restaurant”).  Some of them were carrying plastic buckets.  PW1 then heard multiple loud glass-shattering sound.  About one minute later, Cheng told PW1 to get ready to disperse.  Cheng and the driver of the grey private car then drove their respective private cars to the main entrance of the Fulum Restaurant.  D12, D14, D19 and 3 other persons walked out from the main entrance of the Fulum Restaurant in a hurry.  D14, D19 and another person boarded the black private car and fled.  Meanwhile, D12 placed hammers into the trunk of the grey private car, and two others placed the plastic buckets into the same trunk.  Suddenly, a police vehicle arrived, and intercepted the grey private car.  D12 and the persons at the grey private car immediately abandoned the vehicle and fled. Police officers gave chase.  PW1 then left the scene.

Charge 8 (against D4, D8, D9, D10 and D18)  – Acting as members of a triad society

50.  At 8:03 p.m. on 4 April 2015, PW1 was in a restaurant with D4, D5, D8 and D10.  D9 and D18 approached them.  D9 said to all of them, “Blow the whistle! All of you now go to Chi Lok Market.” PW1, D4, D5, D8, D9, D10 and D18 then left the restaurant immediately and headed towards Chi Lok Market.

51.  At 8:10 p.m., PW1, D4, D5, D8, D9, D10 and D18 arrived at Chi Lok Market in Tuen Mun.  They gathered at the roadside next to the market.  D9 told them, “ ‘Lam Tin Tin Gor’ had a dispute with the people of ‘So Kwun Wat Lo Sun Wa Po’, be careful when you do things a moment later.”

52.  Sometime afterwards, D9 made a phone call.  After the call, D9 said to all of them, “There’s no need now, the other party has dispersed, you guys can leave.”  By then, this group of people had gathered for about 15 minutes. 

53.  According to the triad expert, “blowing the whistle” refers to the gathering of trial society members to show force.

Charge 9 (against D3 and D11)  – Acting as members of a triad society

54.  On 1 May 2015, PW1 received a call from Cheng who asked for reinforcement at the Hoh Fuk Tong area in Tuen Mun.

55.  At 6:40 p.m., PW1 arrived at the area and met up with Cheng and D11. PW1 heard Cheng and D11 criticizing the stance of three persons (one of them named Lam)  about a ‘10% off sharing plan’, causing three other game centres to reject that plan.  Cheng then asked Lam to come over for negotiation. D11 reminded Cheng and said, “Lam is your ‘Yee Yuk’, wait for me before you start negotiating.” Cheng said in reply, “Okay, I will deploy people first, will wait for you.” D11 then drove away.

56.  Later, D1, D3, D7, D9, D15, D17 and D19 arrived at the area.  Cheng then said to everyone at the scene, “I and [D11] ask Lam to come over to discuss the ‘10% off’ matter at 6:30 p.m., but Lam is late and shows no sincerity.  If he plays any tricks later, let’s beat him immediately.”  All the people nodded and waited there.

57.  30 minutes later, D11 returned to the area but Lam had not yet shown up.  Cheng then told D1 to call Lam.  Lam said that he was playing games and might be late.  Cheng and D11 were not happy.  D11 then called off the meeting and told everyone to leave.

58.  According to the triad expert, the terms used by the defendants were triad-related, and ‘Yee Suk’ refers to a triad associate under the same triad protector. The defendants were acting as members of a triad society.

Sentencing authorities

59.  Before I deal with the sentence of each defendant, it will be convenient at this stage to refer to the sentencing authorities drawn to my attention by the public prosecutor and by the counsel representing 11 of the 12 defendants. The only defendant acting in person is D10.  It is not necessary for me to record who has cited which authorities since I shall bear in mind all the authorities cited when I consider the sentence of each defendant.

60.  The offences of which the defendants herein are convicted include claiming to be a member of triad society (Charges 1 and 2), common assault (Charge 4), criminal damage (Charge 5), conspiracy to commit criminal damage (Charge 6), and acting as members of a triad society (Charges 8 and 9). 

61.  It must be right to say that the Court of Appeal has not laid down any sentencing tariff for each of these offences since each of them can be committed in infinite circumstances, and may produce harm and damage of varying magnitude and intensity to each individual victim, and to the society as a whole.  On the other hand, the Court of Appeal has provided very useful guidance when determining appeals against sentences on what will be the appropriate sentences when such offences are committed in certain specific factual scenarios.

62.  In the present case, Charges 1 and 2 are for the offence of claiming to be a member of a triad society, and Charges 8 and 9 are for the offence of acting as members of a triad society in the nature of “blowing the whistle”, which according to the triad expert means gathering triad society members to show force.   In HKSAR v Choy Ka Fai (蔡家輝)  and others[2], the Court of Appeal dealt with inter alia the same charges for offences committed in circumstances similar to the present case.

63.  For the offence in the nature of “blowing the whistle”, the Court of Appeal in Choy Ka Fai reviewed cases including HKSAR v Yeung Chi Keung[3] and HKSAR v Wong Sing Chi[4], and concluded that for offences involving facts comparable in nature and gravity to these two cases, it was most desirable for the sentencing court to adopt similarly a starting point of 15 months’ imprisonment for a defendant acting in the role of an “officer”, and 9 months’ imprisonment for a defendant in the role of a “soldier”, unless there were sufficient reasons to hold otherwise.

64.  For the offence of claiming to be a member of a triad society, the Court of Appeal in Choy Ka Fai stressed that the gravity of this offence depended on the circumstances in which a person claimed to be a member of a triad society, and the purpose for which the claim was made.  The Court of Appeal explained that if a triad member made such a claim to an ordinary member of the public for the purpose of intimidating that member of the public, the offence gravity would of course be high; but if the claim was made in a social context as in the case of HKSAR v Lau Chi Hung[5], the sentence might be lenient.

65.  The Court of Appeal reiterated and applied the same sentencing considerations in HKSAR v Liu Chi Fung[6]. It is not disputed by all parties in the present case that the sentencing considerations in Choy Ka Fai are applicable to the sentencing of all the defendants here.

66.  On the mitigation side, all defence counsel stress that there has been an inordinate or a substantial delay in the prosecution of the defendants, which causes the defendants to suffer significant stresses and anxieties unnecessarily, and that the defendants have already reformed during the delay. They cite the cases of HKSAR v Chiu Chi Wing[7], 香港特別行政區訴朱安芷[8], 香港特別行政區對蟻樂祺[9], and Secretary for Justice v Hui Siu Man, Ricky[10] as authorities to support the submission that the Court should now consider imposing a non-custodial sentence such as community service order or suspended sentence on the defendants due to the substantial delay, or to shorten the term of imprisonment if an immediate prison sentence has to be imposed.

67.  It is well-established that delay is not, of itself, a mitigating factor, in particular when it is caused by difficulties in investigation, obstruction or lack of co-operation by the offender, and the normal operation of the criminal justice system.  On the other hand, it is accepted that delay may be conducive to the emergence of mitigating factors; for example, if, during the period of delay, the offender has made progress towards rehabilitation, or other circumstances favourable to him or her have emerged.  It may also afford the defendant a reduction of sentence if the delay has resulted in significant stress for the offender or left him or her, to a significant degree, in ‘uncertain suspense’; or that during the period of delay the offender has adopted a reasonable expectation that he or she would not be charged, or a pending prosecution would not proceed, and the offender has ordered his or her affairs on the faith of that expectation.  Lastly, delay caused by dilatory or neglectful conduct by the prosecuting authorities or investigatory bodies may result in a discount of the sentence that would otherwise be imposed on the offender, if the court thinks it an appropriate means of marking its disapproval of the conduct in question. 

Pre-sentencing reports

68.  In light of the mitigation, a probation and community service order suitability report is called for on each defendant so that this Court may consider alternative sentencing options other than an immediate custodial sentence.  

69.  The reports are prepared by 3 different probation officers. They make various recommendations regarding the sentences that this Court may consider imposing on the defendants.  Some defendants are recommended to serve a probation order, some defendants are recommended to perform a community service order. 

70.  I am told by counsel for the represented defendants that if a community service order is recommended, the relevant defendant is willing to perform the order, and that they are also willing to perform the number of hours of unpaid work as determined by the Court rather than that suggested by the probation officer. I am also told that the defendants understand the effect of a community service order, and the consequences that may follow if they breach the order.

71.  I shall now deal with the sentence of each defendant.

Sentence of D3

72.  D3 is convicted of Charge 9 (acting as a member of a triad society). He committed this offence on 1 May 2015.  He was arrested on 5 May 2016.

73.  D3 is now 35 years old.  He was born on 27 November 1989 in Hong Kong.  He received education in Hong Kong up to Form 3.  He had previously worked as a construction worker and a delivery worker.  Since January 2022, he has worked as a casual warehouse keeper with a monthly income of $35,000.  He is single. He lives with his parents and two elder brothers in a public housing estate in Tuen Mun.

74.  D3 has a criminal record.  Between May 2006 and 29 October 2024, D3 was sentenced on 7 occasions involving a total of 11 offences, including drug-related and triad-related offences.

75.  For the drug-related offences, D3 was sentenced on 12 July 2016 to drug addiction treatment centre for the offences of possession of dangerous drugs and possession of equipment fit and intended for consuming dangerous drugs.

76.  For the triad-related offences, D3 was sentenced on two occasions, firstly on 29 June 2023 in Case No. TMCC892/2023, and then on 29 October 2024 in Case No. DCCC403 & 464 & 970 & 1053/2023 & DCCC599/2024 (consolidated).

77.  In TMCC892/2023, for 3 offences of acting as members of a triad society which were committed by D3 on 15, 18 and 19 July, 2015 respectively, D3 was sentenced for each offence to 8 months’ imprisonment suspended for 36 months, all sentences were to run concurrently.  According to the related summary of facts, these 3 offences were typical cases of “blowing the whistle” that did not degenerate into actual confrontation between hostile rival groups or use of actual violence.

78.  In DCCC403 & 464 & 970 & 1053/2023 & DCCC599/2024 (consolidated), D3 was sentenced to 10 months’ imprisonment suspended for 36 months for the offence of acting as members of a triad society (also in the nature of “blowing the whistle”), and to 6 months’ imprisonment suspended for 36 months’ imprisonment for the offence of assault occasioning actual bodily harm, and the two sentences were ordered to run concurrently.  D3 committed these two offences on 14 July 2015 and 29 September 2015 respectively.

79.  It is clear that D3 committed the offences in these two cases between 14 July 2015 and 29 September 2015, and PW1 witnessed D3 committing these offences during the same undercover operation as that in the present case.

80.  A reference must be made to another conviction and sentence of D3. On 23 December 2023, he was sentenced to 20 months’ imprisonment for the offence of conspiracy to arson (DCCC868/2023).  According to the Reasons for Sentence, D3 committed the offence on 26 October 2022, and this offence was not connected with PW1’s undercover operation.  D3 was discharged from prison on 20 January 2024 shortly after his sentence, i.e. about a month after the date of sentence, presumably due to the fact that he had been remanded in custody since his arrest.  It means therefore that when he was sentenced in DCCC403 & 464 & 970 & 1053/2023 & DCCC599/2024 (consolidated)  on 29 October 2024, he was not held in custody.

81.  For reasons stated in his report, the probation officer considers that D3 is not a suitable candidate for probation or community service order.

82.  Mr. Peter Wong, Counsel for D3, points out that in the “blowing the whistle” incident that forms the subject matter of Charge 6, D3 did not summon anyone to the offence location, and only a small number of people, i.e. just 8 persons in total, appeared at the scene. There was no scuffles, quarrel, fighting, or direct confrontation with rivalry triad members. No weapons were prepared in advance. Mr. Wong submits that this incident was less serious of its kind. Mr. Wong accepts that the normal sentence for D3 should have been 9 months’ imprisonment as a starting point.  Mr. Wong however argues strongly that it will not be appropriate to impose an immediate custodial sentence on D3 now on the following grounds.

83.  First, Mr. Wong submits that if the present case and TMCC892/2023 and/or DCCC403 & 464 & 970 & 1053/2023 & DCCC599/2024 (consolidated)  were dealt with at the same time, it would be very likely for D3 to be given a suspended sentence because all three cases arose out of the same undercover operation by PW1, and D3 has already been given suspended sentences in the other two cases.

84.  Second, Mr. Wong submits that there is a substantial delay in the prosecution.  D3 was arrested on 5 May 2016, and was soon released on police bail.  It was only in mid-2023 that D3 was formally charged. It took the prosecution more than 7 years to charge D3 for an offence committed by him in 2015.  Mr. Wong submits that in the first few years after 2016, D3 experienced substantial stress and anxiety under the belief that he might be prosecuted.  After that, D3 had a reasonable expectation that he would not be charged at all for the offences he committed when he was involved in triad activities.  

85.  Third, Mr. Wong submits that D3 has to face 3 different cases for what he had done in 2015, and he has to go through the same uncertainty of whether he would be sent to prison for each case, making the past two years a nightmare for D3.

86.  Fourth, Mr. Wong submits that D3 has demonstrated good progress in his rehabilitation.  Mr. Wong points out that D3 now has decent jobs, and his mother says that D3 is remorseful for his wrongdoings.  In addition, D3 indicated this guilty plea at an early stage of this case. D3 has also paid the price for his wrongdoings by suffering from substantial stresses and anxieties in the past few years. D3 should be given a chance to rehabilitate himself.

87.  In conclusion, Mr. Wong asks the Court to deal with D3 leniently. He submits that this Court may consider imposing a suspended sentence on D3 as what the other two courts had done.  He submits that if this Court considers that a custodial sentence has to be imposed, heavy discount should be given to D3 because of the long delay in the prosecution.

88.  In considering the sentence to be imposed on D3, I agree with Mr. Wong that D3 acted as a “soldier” in the “blowing the whistle” incident that formed the subject matter of Charge 9. I also agree that in light of the nature of this Charge and the facts pertaining to this offence, as well as the decisions of the Court of Appeal in Choy Ka Fai and Liu Chi Fung, the appropriate sentence to be imposed on D3 should be a prison term with a starting point of 9 months’ imprisonment.

89.  I also agree with the submissions of Mr. Wong that there has been a substantial delay in the prosecution.  I respectfully referred to paragraphs 54 to 60 of the Reasons for Sentence delivered by His Honour Deputy Judge L.C. Cheng in DCCC403 & 464 & 970 & 1053/2023 & DCCC599/2024 (consolidated). I agree entirely with the analysis given by the learned judge and adopt the same reasons to hold that there has been a substantial delay in the prosecution against D3, and in fact, against all the defendants to be sentenced today.

90.  The question to consider now is how the substantial delay in the prosecution affects the sentence to be imposed on D3.

91.  According to the probation officer, D3 started mixing with dubious peers after leaving school. D3 admitted that he joined the triad society initially for merriment but he soon broke the law to earn easy money since he was unable to keep legitimate employment.  Under bad peer influence, he became addicted to dangerous drugs. D3 admits that he was last sentenced to prison for the offence of conspiracy to arson. D3 alleged that he originally led a stable life as a warehouse worker but he lost his job in around 2022.  Being out of money, he broke the law purely to earn quick money. The probation officer also reports that D3 is now on bail and under police investigation in respect an alleged offence of using a false instrument. I shall ignore this alleged outstanding offence when considering the sentence of D3.

92.  The probation officer also points out that D3 has admitted that he is still taking dangerous drugs occasionally for fun, but D3 insists that he is not addicted to drugs.  The probation officer considers D3 co-operative during the enquiry, but considers that D3 is not suitable for probation since he had breached probation before, and that he is also not suitable for performing a community service order because he is still taking dangerous drugs.

93.  In his mitigation for D3, Mr. Wong stresses that great stresses and anxieties have been caused to D3 and that D3 has a reasonable expectation that he would not be prosecuted for his offence in May 2015 due to the substantial delay in prosecution.  However, it is clear that during this period of delay, D3 has not refrained from committing offences. It is apparent from the Reasons for Sentence in Case No. DCCC868/2023 that D3 committed the offence of conspiracy to commit arson on 26 October 2022, and this conspiracy was actually executed by D3 when he burned the victim’s car.  Apparently, D3’s co-conspirator was involved in a traffic accident with the victim, and while he was willing to compensate the victim for the vehicle damage, he was discontented with the amount of compensation sought by the victim who insisted on pressing with his complaint to the police if they could not settle the matter.  The co-conspirator then paid the victim the amount asked for, but asked D3 to burn the victim’s car and D3 did so accordingly.  The learned Deputy Judge adopted a starting point of 33 months’ imprisonment, and eventually sentenced D3 to 20 months’ imprisonment to give effect to D3’s guilty plea, and in light of the fact that D3 had injured himself in the course of committing the offence. It is obvious that this offence was not related in any way to PW1’s undercover operation.

94.  Not only D3 had committed such a serious offence after his arrest in May 2016 for the present case, he has also continued taking dangerous drugs. In my view, despite the substantial delay in prosecution, D3 has not made use of the opportunity to reform himself.  He has made no or little progress towards his rehabilitation. Under these circumstances, there is simply no justification for him to escape an otherwise appropriate sentence of imprisonment.

95.  For these reasons, I am of the view that the only appropriate sentence to be imposed on D3 is imprisonment. I adopt 9 months’ imprisonment as the starting point, and reduce it to 6 months’ imprisonment in light of his guilty plea.

96.  I note Mr. Wong’s submission that if this case, TMCC892/2023 and/or DCCC403 & 464 & 970 & 1053/2023 & DCCC599/2024 (consolidated)  were dealt with at the same time, it would be likely for D3 to receive a suspended sentence for this case, which was the sentence imposed in the other two cases.  Mr. Wong accepts that sentences of other courts are not binding on this Court. Not only that, I note from the Reasons for Sentence delivered by Deputy Judge L.C. Cheng that he had not explained why the sentences of D3 in that case should be suspended when D3 had committed another serious offence of conspiracy to commit arson which demonstrates that D3 had not reformed. I am of the view that despite the fact that D3 has been given suspended sentences in respect of the other cases arising out of the same undercover operation by PW1, this Court is entitled not to suspend the prison term, and there is good reasons for doing so.

97.  Nevertheless, I accept that the delay can be a valid ground for reducing the sentence. For this reason, I reduce D3’s sentence further by one month, which means that, together with D3’s guilty plea, he is given a reduction of the sentence by about 45%, which I find to be the maximum discount under all the circumstances of this case.

98.  For these reason, in respect of Charge 9, D3 is sentenced to 5 months’ imprisonment.

Sentence of D4

99.  D4 is convicted of Charge 8 (acting as members of a triad society).  He committed the offence on 4 April 2015. He was arrested on 5 May 2016.

100.  D4 is now 30 years old.  He was born on 26 November 1994 in Hong Kong.  He received education in Hong Kong up to Form 4.  He worked as a construction surveyor assistant at the time of his arrest in 2016.  He had a steady employment with Ming Lee Foundation Company Limited from April 2017 to October 2019 with commendable incomes between $11,000 and $23,000.  He could not continue with this employment because of the series of events in Hong Kong since October 2019 including the pandemic, during which he took up several temporary surveying jobs and worked as an Uber driver.  Since December 2023, he started working as a night-shift taxi driver with a monthly income of $17,000.  He is single.  He lives with his mother and one elder brother.  His another elder brother passed away in December 2022.

101.  D4 has a clear criminal record.

102.  Mr. Kalvin Chan, Counsel for D4, submits that D4 mixed up with undesirable people after he had left school when he was working at the local cafes and karaoke restaurants but he has already turned a new leaf. Mr. Chan stresses that after his arrest in 2016, D4 managed to maintain a stable employment with Ming Lee Foundation Company Limited with commendable income until October 2019, and D4 thereafter continued taking up gainful employments and became a taxi driver since December 2023. Mr. Chan points out that D4’s elder brother died in December 2022 due to heart attack, and the loss of his elder brother reinforces D4’s determination to shoulder the burden of supporting his family.  Mr. Chan points out that D4 was charged for the present case only in April 2023. There has been a delay for nearly 10 years in the prosecution. Mr. Chan argues that if D4 had been charged before he turned 25, he might have been sentenced to detention centre and the period of detention could have been as short as 3 months.  As far as the offence is concerned, in this “blowing the whistle” incident, D4 was only a “soldier”, and only 7 persons gathered in Chi Lok Market at 8 pm when the place was not crowded at all.

103.  In his report, the probation officer reports that D4 became acquainted with peers with triad background when he was around 20 years old, but after his arrest in 2016, D4 stayed away from the undesirable peers. For the past 9 years, D4 has managed to keep stable employments and led a regular structured life. D4 has also a clear criminal record and is remorseful for his wrongdoings. The probation officer is of the view that the chance for D4 to reoffend is slim. He therefore considers that D4 is suitable for performing a community service order and recommends that D4 should perform unpaid work for 80 to 120 hours.

104.  In light of the nature and the facts pertaining to the offence in Charge 8, as well as the authorities from the Court of Appeal, if there is no substantial mitigating factor in favour of D4, the appropriate sentence to be imposed on D4 would have been a custodial sentence. Depending on his age when he were to be sentenced, he might be detained in a correctional services institution such as the Detention Centre or Training Centre, and if a prison sentence was called for, the appropriate starting point of that prison term would have been 9 months’ imprisonment.

105.  However, on the basis of the findings made by the probation officer, I accept that D4 has made significant progress towards his rehabilitation since his arrest.  I also accept that there has been a substantial delay in the prosecution. For these reasons, I find that it would not be appropriate to sentence D4 to prison now.

106.  Furthermore, I am satisfied that D4 is a suitable person to perform a community service order, and that provision can be made for D4 to perform work under such an order. Hence, in respect of Charge 8, D4 is sentenced to perform a community service order for 120 hours. This Court considers that D4 has to perform 120 hours of unpaid work to reflect the gravity of the offence.

Sentence of D6

107.  D6 is convicted of Charge 1 (claiming to be a member of a triad society)  and Charge 5 (criminal damage). He committed these offences on 17 September 2014 and 29 November 2014 respectively.  He was arrested on 5 May 2016.

108.  D6 is now 42 years old.  He was born on 10 January 1983[11] in the mainland, and he migrated to Hong Kong in 1997.  He was 31 years old at the time of the offence. His father has already passed away.  D6 now lives with his mother, his cohabitant aged 37, and a son aged 8. 

109.  D6 had not completed Form 3 education. Between 1999 and 2001, he worked in MacDonald fast food shops. Between mid-2002 and 2005, he worked as a tallyman in container terminal; between 2005 and 2016, he took up various casual non-skilled jobs such as exhibition stage set-up worker, lighting installer, waiter, construction laborer; between February 2017 and March 2023, he worked as a tallyman again in the container terminal, but he quitted this long-term job because of his deteriorating heart condition. He now works as a courier, earning between $10,000 to $20,000 a month.

110.  D6 has one previous criminal conviction.  On 5 December 2024, he was fined $1,800 and disqualified from driving for 6 months, and was ordered to attend a driving improvement course for the offence of dangerous driving.  Obviously, D6 had no criminal record when he committed the offences in Charges 1 and 5.

111.  Mr. Dick Wong, Counsel for D6, submitted that D6 was born in an underprivileged environment and was significantly influenced by his peers, and that was why he became involved in triad-related activities during his youth. However, after his arrest in 2016, D6 recognized the importance of leading a diligent and industrious life to support his family adequately.

112.  Mr. Wong submits medical evidence to prove that D6 is now suffering from heart problem. D6 was diagnosed by Tuen Mun Hospital on 18 October 2024 to have heart failure which means that his heart can only perform 40% of its functions. D6 is now a medically active case requiring intensive medical follow-ups.

113.  In her report, the probation officer finds that D6 has nearly a clean criminal record and that he does not abuse drugs.  She considers that D6 has significantly amended his behavior and regulated his life after his arrest about 9 years ago, and that the birth of his son has instilled into D6 a strong sense of responsibility, and D6 has now become a family man.  She finds that D6 is deeply remorseful for his offences.  D6 has expressed his readiness to perform a community service order despite his medical conditions.  She finds that D6’s chance of reoffending is low. The probation officer considers that there is no need for D6 to receive probation since he is mature and has amended his behavior, and that community service order is also not recommended due to D6’s active health issues.

114.  In his letter to this Court, D6 says that he feels particularly shameful and remorseful for committing these offences because he was arrested by the police only 20 days after his son had been born.

115.  In respect of Charge 1 (claiming to be a member of a triad society), Mr. Wong submits that D6 was at the material times just queuing up overnight to buy new iPhones, and that there was no suggestion that the queuing up itself was illegal or had violated any rules. He submits that D6’s claiming was uttered in response to the group of persons who were jumping queue. D6 had not threatened to use violence or use any unlawful means.

116.  As the Court of Appeal in Choy Ka Fai has stressed, the gravity of this offence depends on the circumstances in which a person claims to be a member of a triad society, and the purpose for which the claim is made.  In the case of Lau Chi Hung which the Court of Appeal in Choy Ka Fai has referred to, the appellant in that case said to the undercover police officer that they were of the same triad society and just like a family. Deputy Judge Line (as he then was)  held that this was a gentle claim made in a social context, but the magistrate had also imposed a gentle sentence of 3 months’ imprisonment which was “at the bottom end of the bracket for claiming to be a member of a triad society”. 

117.  In HKSAR v Chan Kin Kwok (陳建國)  & Another[12], the first appellant claimed that he was a member of a triad society when he had conversations with triad members of another group, and one of the other group said if he needed help or if people were going out for a drink, he might call him.  McMahon J. described the claiming was made in a calculated and deliberate manner so as to identify himself to other individuals at a gathering in which there were overtones of something more than a merely social setting. McMahon J considered that a sentence of 6 months’ imprisonment after trial was appropriate.

118.  In respect of Charge 1, I am of the view that D6 did not commit the offence in a social setting, but his claim carried with it triad overtones to scare off those people who tried to jump the queue.  While D1 was not the person kicking up the trouble, it is not permissible to use triad language in Hong Kong for whatever purpose. Hence, I am of the view that in the absence of any viable mitigating factor, imprisonment is the appropriate sentencing option, and that the appropriate starting point is 6 months’ imprisonment.

119.  In respect of Charge 5 (criminal damage), Mr. Wong submits that the extent of D6’s participation was limited in that D6 was not the leader, and did not engage in any violent act. D6 had not even entered the crime scene as he was only engaged in driving the group away after the event, and told D13 to put the bats back to the village office. Mr. Wong says that D6 had not received any remuneration before or after the incident as the other participants had.

120.  In my view, it is clear from the facts admitted by D6 that this criminal damage episode was an organized crime against a newly opened pharmacy that refused to pay protection fees to the triad society.  The purpose of the attack was clearly to punish a legitimate business for failing to comply with the triad demands for protection money, and to scare it as well as other legitimate businesses in the region into submission.  While the man surnamed Wong and D9 appeared to be playing the leading role, D6’s role was part and parcel of the whole criminal enterprise, and D6 was playing the role of assisting the culprits to flee from the scene.  The criminal damage episode lasted for about 10 seconds, but there was no clear evidence on the amount of damage suffered by the victim. In my view, in the absence of any viable mitigating factor, imprisonment is the appropriate sentencing option, and that given the role played by D6, the appropriate starting point is 12 months’ imprisonment.

121.  There are of course a number of mitigating factors in D6’s case. Firstly, D6 has pleaded guilty. Second, there is a substantial delay in prosecution, and it appears that D6 has made good use of the interim period to reform himself.  He is a family man now, and I believe that the birth of his son about 8 years ago gives him the greatest motivation to reform himself and he has succeeded in doing so.  Under these circumstances, if D6 had been medically fit, I would have no hesitation to order D6 to perform a community service order.

122.  I have no doubt that D6 is willing to perform unpaid work as a means to repay the society for the crimes that he had committed. The probation officer does not consider community service order suitable for D6 because of his heart problem. It is said that D6’s heart can only perform 40% of its functions.  I am of the view that if I order D6 to perform a community service order, I have no idea whether or not the order will aggravate the health problem of D6.  I am also concerned with the difficulties that the probation officer may face when she looks for appropriate work for D6 to perform, and the inconveniences that may be caused to the agencies that may accept D6 to perform unpaid work in their premises.

123.  Having balanced all the factors, I am of the view that imposing a suspended prison sentence on D6 will satisfy the justice of this case. 

124.  In respect of Charge 1, D6 is sentenced to 4 months’ imprisonment suspended for two years. In respect of Charge 5, D6 is sentenced to 8 months’ imprisonment suspended for two years. I order that these two sentences are to run concurrently.

Sentence of D8

125.  D8 is convicted of Charge 8 (acting as members of a triad society). He committed the offence on 4 April 2015. He was arrested on 5 May 2016.

126.  D8 is now 30 years old.  He was born on 7 November 1994 in the mainland China. He received education in Hong Kong but without completing Form 5.  He has been employed as an air-conditioning technician by the same company for over 10 years.  He got married in March 2019. He lives with his wife.  She is a housewife.  They have a daughter aged 5, who was born in October 2019, and is now a kindergarten student.

127.  D8 has one previous criminal conviction.  On 21 April 2009, he was put on probation for 12 months for the offence of theft.

128.  Miss Rachael Po, Counsel for D8, submits that on the day in question, D8 originally intended to attend a café to have dessert, but then D9 suddenly “blew the whistle”, and that D8 just showed up in the market. There was no use or demonstration of violence at the material times.

129.  I have already dealt with the gravity of the offence in Charge 8 when I dealt with the sentence of D4.  D8’s role in the offence was similar to that of D4.  D8 also played the role of a “soldier” in this “blowing the whistle” incident.  In normal course of event, and in the absence of sufficiently strong mitigating factors, a prison sentence with its starting point at 9 months’ imprisonment will be applicable to D8.

130.  In his report, the probation officer reports that D8 is remorseful for the offence that he had committed in 2015 and for his past affiliation with triad members. D8 has a steady employment now, and he has the full support of his family members. The probation officer considers that it is worthwhile giving D8 a chance to rehabilitate, and recommends him to perform a community service order for 100 to 160 hours.

131.  Miss Po submits that during the period of delay in prosecution, D8 has changed his life drastically.  He got married and had a daughter in 2019, and he was arrested in May 2015 but was charged only on 26 April 2024.  She stresses that it is highly unlikely for D8 to reoffend as D8 is determined to become a role model for his daughter and to ensure that she has the best quality of life.

132.  The mitigating factors in favour of D8 are that he has indicated his guilty plea at the first available opportunity, that he has stayed out of trouble all the time after his arrest, and that he has substantially changed his position and commitments to family members during the long period of delay in prosecution.  For these reasons, I find that it would not be appropriate to sentence D8 to prison now.

133.  Furthermore, I am satisfied that D8 is a suitable person to perform a community service order, and that provision can be made for D8 to perform work under such an order. Hence, in respect of Charge 8, D8 is sentenced to perform a community service order for 120 hours. As in the case of D4, this Court considers that D8 has to perform 120 hours of unpaid work to reflect the gravity of the offence.

Sentence of D9

134.  D9 is convicted of Charge 4 (common assault), Charge 5 (criminal damage), and Charge 8 (acting as members of a triad society). He committed these offences on 20 November 2014, 29 November 2014, and 4 April 2015 respectively.  He was arrested on 5 May 2016.

135.  D9 is now 40 years old.  He was born on 11 August 1984.  He was educated up to Form 2 level. Until recently, he worked as a funeral service worker with a monthly income of around $20,000.  D9 is married with 3 daughters aged 10, 8 and one respectively.

136.  D9 was sentenced on 9 previous occasions involving a total of 12 offences.  D9 was sentenced for 8 of these offences between November 1997 and May 2015 including 2 offences of assault occasioning actual bodily harm, common assault, 2 offences of possession of dangerous drugs, conspiracy to blackmail, behaving in a disorderly manner in a public place, gambling in a gambling establishment.

137.  After 2015, D9 was next sentenced on 19 June 2023 for two cases.  In Case No. TMCC892/2023, for 3 offences of acting as a member of a triad society, D9 was sentenced to 8 months’ imprisonment suspended for 36 months for each offence, to run concurrently.  On the same day, in Case No. TMCC890/2023, D9 was sentenced to 6 months’ imprisonment suspended for 36 months for the offence of claiming to be a member of a triad society, to run consecutively to the sentences in TMCC892/2023. These two cases arose out of the same undercover operation by PW1.

138.  Mr. Davis, Counsel for D9, submits that since the birth of his eldest daughter, D9 has been proactive in giving up his old lifestyles and seeking chances to rehabilitate himself.  He recognized that his drug addiction problems had been a life-long obstacle. He therefore attended and completed a drug treatment course held by the Christian New Life Association Ltd.  Mr. Davis informs the Court that the treatment course not only helped D9 overcome his addiction, but also provided him with an opportunity to secure gainful employment.  He became a full-time peer counsellor of the Association and earned about $11,000 a month.  Although D9 resigned in April 2022 so as to better provide for his family, he continued to perform voluntary work for the Association, and from time to time returned to the Association to work as a peer counsellor on a short-term basis.  D9 has also graduated from a three years’ course held by the Hong Kong Institute of Christian Counsellors with the aim of acquiring communication skills when counselling individuals with substance abuse problems. The course was concluded in 2024 and D9 obtained the Certificate in Christian Counselling.  D9 is also a Christian and a member of the Glorious Praise Fellowship Hong Kong Limited led by Pastor Charles McKnelly.  D9 is committed to the work of the Fellowship and renders voluntary help.  In summary, Mr. Davis submits that since his arrest in 2016, D9 has not only totally reformed himself, but has also taken an active role to ensure that other young people do not make the same mistakes as he did.  D9 has also become a responsible husband and father who is now dedicated his family.

139.  As far as the gravity of the offences committed by D9 are concerned, it is clear that D9 was playing a leading role in each of these offences.  For the offence of common assault (Charge 4), while D9 was not the person who actually assaulted the two workers, D9 was the person giving instructions, directing PW1 to buy surgical masks for the actual assailants to put on to cover their appearances, and D9 had prepared in advance the sticks to be used in the assault.  The assault was particularly nasty because while two workers were being assaulted, they had no grudges with D9 or any of the culprits. D9 told PW1 and D15 that they should tell the workers who were to be attacked that it was their boss who caused them to be beaten. Undoubtedly, this attack was meant to scare the boss of these workers by assaulting innocent people.  In my view, while the attack on the two workers lasted for just about 10 seconds, and there was no serious injuries inflicted on them, the offence itself calls for an immediate term of imprisonment with a starting point of no less than 8 months’ imprisonment, unless there are sufficiently strong mitigating factors that compel the court to hold otherwise.

140.  As far as the offences of criminal damage (Charge 5)  and acting as members of a triad society (Charge 8)  are concerned, I have spoken of the gravity of each of these two offences when I dealt with the sentences on D6 and D8 respectively. Not only what I say there are applicable to D9, D9 was in fact playing a leading role in each of these two offences. For that reason, D9 would have received sentences longer than those that would have imposed on D6 (Charge 5)  or on D8 (Charge 8). To say the least, in the “blowing the whistle” incident of Charge 8, D9 was playing the role of an “officer”, and according to Choy Ka Fai, a starting point of 15 months’ imprisonment would have been appropriate.

141.  But of course this Court has to consider the mitigating factor in favour of D9. First, he indicated his guilty pleas to all the charges in good times. Second, there is a substantial delay in the prosecution.  Third, during the period of delay, D9 has made significant progress in his rehabilitation. He has not only turned a new leaf as far he is concerned, he has also helped young people not to make the same mistakes like him.  The submissions made by Mr. Davis are confirmed not only by the mitigation letters submitted by a legislative counsellor, a district council member and the founder of the Christian New Life Association Pastor Cheng, but also by the probation officer after careful social investigation.

142.  The probation officer considers that D9 is a suitable candidate for community service order with special conditions, and recommends that D9 shall perform 120 to 160 hours of unpaid work.

143.  Mr. Davis submits that the Court may consider putting D9 on a suspended sentence. I do not accede to this request.  In my view, directing a defendant to perform a community service order is much better than putting him on a suspended sentence because the defendant must do unpaid voluntary work as a means to repay the society for the chance given to him, and that a community service order will also demonstrate to the public the punitive element of the sentences.

144.  Having carefully considered the matter, I am satisfied that D9 is a suitable person to perform a community service order, and that provision can be made for D9 to perform work under such an order. Hence, in respect of each of Charges 4, 5 and 8, D9 is sentenced to perform a community service order for 160 hours with the special conditions that (a)  he shall abstain from all dangerous drugs, and (b)  he shall submit himself to random urine tests as directed by his supervising probation officer. I order that all sentences are to run concurrently, which means that D9 is only required to perform 160 hours of unpaid work in accordance with the provisions of the Community Service Ordinance.  This Court considers that D9 must perform a longer period of unpaid work, i.e. up to 160 hours, in order to reflect the gravity of the offences either on its own or on aggregate.

Sentence of D10

145.  D10 is convicted of Charge 8 (acting as members of a triad society). He committed the offence on 4 April 2015. 

146.  D10 is now 31 years old. He was born on 14 July 1993 in the mainland.  He came to Hong Kong in 1996.  He received education in Hong Kong without completing Form 3. He worked as kitchen worker, delivery worker, air-conditioning technician and assisted his father in the field of renovation and interior decoration.

147.  D10 was sentenced on two previous occasions involving a total of 3 offences.  He was put on probation for 12 months for the offence of unlawful sexual intercourse with a girl under the age of 16 in October 2011.  On 14 September 2020, he was sentenced to 20 months’ imprisonment for the offence of trafficking in dangerous drugs, and to 4 months’ imprisonment for possession of offensive weapon in a public place, one month of this sentence was ordered to run consecutively to the sentence for the trafficking offence. D10 was released from prison on 20 May 2021.

148.  After D10 had served his sentence, about 8 months ago, D10’s father set up the Wing Lee Decoration and Engineering Company in Tai Po, aiming to stabilize the working pattern of D10 and to instill a sense of responsibility in D10 and to develop a career for D10.  D10’s parents paid him $700 to $1,000 a day as incentive for him to work hard, and they are satisfied with D10’s performance.

149.  D10 is now living with his parents. D10 was married in 2015 in his hometown through the arrangement of his parents who wanted to instill a sense of responsibility into D10 and regulated his livelihood.  The marriage however lasted for only 5 years, and ended in divorce on 31 January 2022.  D10 has no children.

150.  D10 is not legally represented.  Hence, this Court relies heavily on the probation officer to obtain relevant information about D10. As far as the offence is concerned, D10 said that he was at the material times having sweet soup with PW1, D4 and D8, and suddenly PW1 received a call from D9 who “blew the whistle”.  He said that he just followed the others out of curiosity and in a bid to seek excitement.

151.  D10 says that he starts to abuse drugs in 2019 under peer influence. He says that after he had been discharged from prison, he had stopped taking drugs, but in the month leading to the last court hearing, he experienced substantial stress and took drugs again. 

152.  Two random urine tests had been conducted on D10. The first urine sample taken on 26 February 2025 was cocaine positive, while the second urine sample taken on 13 March 2025 had no traces of any drugs.

153.  The probation officer considers that D10 was immature when he committed the offence, and he is now deeply remorseful. During the adjournment, D10 manages to maintain his stable employment in his father’s shop and appears to be motivated to turn a new leaf.  The probation officer considers it appropriate to give another chance to D10 and recommends putting him on probation for 12 months with the special conditions listed in the report.  D10 says that he is willing to serve probation for 12 months according to the terms recommended by the probation officer.

154.  I have already spoken about the gravity of the offence in Charge 8. D10 played the role of a “soldier”, and he is liable to serve a term of imprisonment with its starting point at 9 months’ imprisonment.

155.  There are however mitigating factors in favour of D10.  First, he has pleaded guilty.  Second, there has been substantial delay in the prosecution.  While D10 has committed further offence during the period of delay, there is no evidence that he has continued with any triad activities, and he has instead a drug problem. Fortunately, his parents have been trying their best to help D10 by providing him with a job and possibly a career in the future if he manages to follow the advice and guidance of his parents to run the shop. Third, D10 now has the refreshed motivation to turn a new leaf, and is willing to learn under the probation order.  Lastly, he did not consume further drugs after the first urine sample was taken from him.

156.  For these reasons, I accept the recommendation of the probation officer. In respect of Charge 8, I sentence D10 to probation for 12 months with the special conditions recommended in the probation officer’s report.

Sentence of D11

157.  D11 was convicted of Charge 9 (acting as members of a triad society). He committed the offence on 1 May 2015.  He was arrested on 10 May 2016.

158.  D11 is now 53 years old.  He was born in Hong Kong on 29 September 1971.  He received education in Hong Kong but he quitted schooling before completion of Form 3. He is married.  He lives with his wife who is 36 years old and works as a clerk.  They have no children, but D11 has a 25 years’ old son from his previous marriage.  His son has married and is living apart from D11.  D11’s father who is also living apart from D11 is now 77 years old.  D11’s mother passed away two years ago.  In 2015, D11 started working in an engineering maintenance company and is now a supervisor earning $58,000 a month

159.  D11 was sentenced on 5 previous occasions involving a total of 6 offences.  In October 1989, he was fined $7,500 for managing an unlicenced massage establishment. In August 1990, he was sentenced to detention centre for managing a vice establishment. In September 1997, he was fined $3,000 for operating a gambling establishment. In June 2004, he was fined $5,000 and disqualified from driving for 6 months for driving a motor vehicle with alcohol concentration above the prescribed limit, and he was further fined $1,000 for careless driving.  On 9 May 2005, he was sentenced to two months’ imprisonment suspended for two years for behaving in a disorderly manner in a public place.

160.  Mr. Freddy Woon, Counsel for D11, submits that D11 is remorseful for what he had done.  Mr. Woon submits that D11 has been a law-abiding citizen for the last 9 years and has not participated in any triad related activities, or committed any other criminal offences.  Instead, he works hard in the engineering industry and he has now reached the position of a foreman with very handsome income every month.

161.  Mr. Woon accepts that D11 played the role of an “officer” in the “blowing the whistle” incident that forms the subject matter of Charge 9.  He submits that a starting point of 15 months’ imprisonment is applicable to D11 but stresses that there was no aggravating feature in the case.

162.  Mr. Woon further submits that there has been substantial delay in the prosecution, and this amounts to exceptional circumstances that justify suspending any prison term that may be imposed on D11.

163.  In his report, the probation officer basically confirms what Mr. Woon has submitted in mitigation. The probation officer considers D11 a suitable candidate for performing a community service order, and recommends that D11 shall perform 100 to 160 hours of unpaid work.

164.  On the basis of the findings made by the probation officer, I accept that D11 has made significant progress towards his rehabilitation since his arrest.  I also accept that there has been a substantial delay in the prosecution. For these reasons, I find that it would not be appropriate to sentence D11 to prison now even though he was playing the leading role of an “officer” in the offence.

165.  Furthermore, I am satisfied that D11 is a suitable person to perform a community service order, and that provision can be made for D11 to perform work under such an order. Hence, in respect of Charge 9, D11 is sentenced to perform a community service order for 120 hours. This Court considers that D11 has to perform 120 hours of unpaid work to reflect the gravity of the offence.

Sentence of D12

166.  D12 is convicted of Charge 6 (conspiracy to commit criminal damage). He committed the offence on 5 December 2014.  He was arrested on 24 May 2016. 

167.  D12 is now 37 years old.  He was born on 6 April 1988 in Hong Kong. He now lives with parents. He has one younger brother aged 33. He has been in a stable relationship with his girlfriend for the past 6 years. They plan to get married after the present case is settled.

168.  D12 received education up to Form 3. He used to work as a delivery worker, but from March 2025 to 9 April 2025, he worked as a ward attendant in a drug rehabilitation centre run by the Hong Kong Christian Service Jockey Club Lodge of Rising Sun with a monthly salary of $15,000.  He quitted he job on 9 April 2025 due to his recent drug-taking behavior.

169.  D12 was sentenced on 16 previous occasions involving a total of 14 offences and 3 breaches of probation orders.  Most of the criminal convictions were for offences of possession of dangerous drugs.  He was last sentenced on 29 June 2023 for two cases.  First, he was sentenced to 8 months imprisonment suspended for 36 months for the offence of acting as a member of a triad society (TMCC890/2023). Second, he was also sentenced to 8 months imprisonment suspended for 36 months for the offence of acting as a member of a triad society, 4 months of this sentence was to run consecutively to the sentence in TMCC890/2023 (TMCC892/2023). These two cases arose out of the same undercover operation by PW1 as in the present case.

170.  Mr. Dick Wong, Counsel for D12, stresses that despite the number of his criminal convictions, all these convictions were for offences committed by him in or before 2015. Mr. Wong submits that D12 was naïve and lost in his early adolescence, and he found thrill in triads and drugs.  But since 2015, D12 learned about Christian detoxification and rehabilitation programmes, and started to reshape his values and reform his life under the religious guidance. D12 has also contributed back to the society. Over the past two years, D12 had at the invitation of various charities and non-governmental organizations conducted many anti-drug workshops in school and shared his rehabilitation journey.

171.  In his report, the probation officer reports that D12 lived with his parents again after his discharge from prison in mid-2016 and lessened his contact with previous triad members. D12 relapsed into taking drugs in late 2019, and had received voluntary drug treatment in Operation Dawn and the Hong Kong Christian Service Jockey Club Lodge of Rising Sun.  The responsible case workers commented that D12 managed to behave within limits and perform satisfactorily. D12 was later employed by the Hong Kong Christian Service Jockey Club Lodge of Rising Sun as a ward attendant. But unfortunately, D12 relapsed into taking drugs on several occasions in October 2024 when he had stomach pain. A urine test conducted on him by the probation officer on 28 February 2025 showed ketamine positive.  D12 sought to explain that he thought that he would be remanded in custody after his court appearance on 25 February 2025 and hence he took the drugs.

172.  The probation officer reports that D12 begs for a chance to receive probation and undertakes to get rid of his drug addiction by receiving 12-month voluntary residential drug treatment. He has approached Operation Dawn and is assessed to be suitable for admission. The probation officer opines that it is questionable whether D12 will be able to sustain a drug-free life from the programme in Operation Dawn since he has received similar kind of treatment 3 times before. Nevertheless, the probation officer recommends putting D12 on probation for 18 months with special conditions on the ground that D12 has in the past years endeavored to break away from his undesirable peers and to lead a regular life pattern, and he has also received good support from his parents and drug rehabilitation helping professionals.

173.  Mr. Wong submits that D12 did not play a leading role in the conspiracy that formed the subject matter of Charge 6.

174.  As far as the gravity of the offence is concerned, Charge 6 was a conspiracy to damage the property of Fulum Restaurant on 5 December 2014. It is noteworthy that in the summary of facts presented by the prosecution, the facts focused on the preparation leading to the group of culprits going into and out of the Restaurant. PW1 was tasked to check whether police were in the vicinity of the Restaurant, and to check whether two iron hammers had been stored in the vicinity.  Two vehicles were involved in transporting culprits going to the Restaurant with the people on board putting on surgical masks, gloves and hoods. PW1 heard loud grass-shattering sound when some of the culprits entered the Restaurant, and PW1 saw D12 and D14 together with some others left the main entrance of the Restaurant thereafter, and D12 then put hammers and some other people put plastic buckets back to the trunk of one of the cars, and they (including D12 and D14)  boarded the cars to leave the scene.  There was no doubt that this was a calculated plan to organize an attack against a legitimate business the Fulum Restaurant.  What is lacking from the summary of facts presented by the prosecution was whether this conspiracy had actually been executed, i.e. what had actually happened inside the Restaurant, and if it had been damaged by these culprits, what was the loss suffered by the victim.

175.  In the course of considering the sentence for D13, it has come to my notice that D13 was convicted of criminal damage and sentenced to 12 months’ imprisonment in Case No. DCCC302 & 631/2015 on 2 December 2015.  A perusal of the related Reasons for Sentence reveals that D13 was convicted of damaging the Fulum Restaurant together with others on 5 December 2015.  It was recited by the learned judge specifically that the glass walls and television monitors inside the Fulum Restaurant were damaged, and that red and green paint were splashed over various property such as the escalators, fish tanks, floor, ceiling and dining tables, and that the loss suffered by the victim was around $100,000. The facts also revealed that the Fulum Restaurant was due to open for business on 5 December 2015 after renovation. The learned judge adopted a starting point of 18 months’ imprisonment.  She specifically said that she accepted that, as far as the facts presented to her were concerned, there was no evidence of threat, intimidation or triad involvement.

176.  In response to my question, Miss Chan the learned senior public prosecutor informs me that it is a conscious decision on the part of the prosecution not to include the facts recited in DCCC302 & 631/2015 into the summary of facts in the present case. Miss Priscilla Lau, Counsel for D14 who is due to be sentenced on Charge 6, submit that this Court shall not take into account the facts that do not appear in the summary of facts prepared by the prosecution in this case.  I agree with the submission. I remind myself not to take into account the facts recited in DCCC302 & 631/2015.  In other words, I have to sentence D12 (and later D14)  on the basis that while there was a conspiracy to damage the property of the Fulum Restaurant, there was no evidence that this conspiracy had been executed. 

177.  Be that as it may, I am of the view that in light of the facts pertaining to this charge, D12 was at least instrumental in asking PW1 through telephone calls whether the iron hammers were stored in the nearby meter room, and whether there was police presence in the vicinity of the Fulum Restaurant, and PW1 saw D12 walking out of the main entrance of the Fulum Restaurant after PW1 had heard loud glass-shattering sound, a sentence of imprisonment is called for unless there are mitigating factors that compel this Court to hold otherwise in favour of D12 (or D14).  If a prison term is called for, and using the starting point adopted by the learned judge in DCCC302 & 631/2015 as a reference, the starting point of the prison term for Charge 6 cannot be lower than 12 months’ imprisonment.

178.  In the present case, the mitigation in favour of D12 is of course his guilty plea and the substantial delay in prosecution. It appears from the investigation of the probation officer that other than occasional use of ketamine on the part of D12, he had cut his ties with undesirable peers and managed to stay out of trouble.  He had sought voluntary treatment over his drug problems throughout the years, and managed to get employed as a ward attendant of a rehabilitation centre operated by a non-government organization. He had also helped other people in need of drug treatment to turn a new leaf.  He has also approached Operation Dawn for treatment, and is assessed to be suitable for admission, and that a vacancy has been reserved for him.

179.  Bearing all these factors in mind, especially the fact that during the period of delay in prosecution, D12 has no other problem other than his occasional use of drugs, I am of the view that it is still worthwhile giving D12 a chance to have rehabilitation outside the correctional services setting. 

180.  In respect of Charge 6, D12 is placed on probation for 18 months with the special conditions that he shall: (a)  work and reside as directed by the supervising probation officer, (b)  receive residential drug withdrawal treatment programme at Operation Dawn for 12 months as directed by the supervising probation officer, and (c)  abstain from taking all illicit drugs and submit to random urine tests as directed by the supervising probation officer.

Sentence of D13

181.  D13 is convicted of Charge 2 (claiming to be a member of a triad society).  He committed the offence on 17 September 2014. He was arrested on 25 May 2016.

182.  D13 is now 35 years old. He was born on 11 November 1989 in Hong Kong.  He is married, living with his wife and his daughter was born only recently on 30 December 2024. D13 has received education up to Form 4.  D13 has previously worked as a casual lorry attendant, and a tallyman in container terminal.  Since 2022 until now, D13 sets up his own business and is the owner of a cleaning and maintenance company (i.e. Wilson Service Company), and his monthly income is about $25,000 a month.

183.  D13 was sentenced on 4 previous occasions involving a total of 5 offences, including being in charge of a motor vehicle with alcohol concentration above the prescribed limit, two offences of possession of dangerous drugs, driving with any concentration of specified illicit drug, and criminal damage. He was last sentenced on 2 December 2015 for the offence of criminal damage (DCCC302 & 631/2015).

184.  Investigation by the probation officer reveals that D13 was dedicated to his work at the container terminal after his discharge from prison for the criminal damage offence in 2015. With the financial help of his parents, he sets up his own cleaning and maintenance company and he manages his business successfully. The probation officer considers that D13 has led a regulated livelihood with no further law transgression in the past 9 years, and that the chances for D13 to reoffend is low. For these reasons, the probation officer considers that it is not necessary to put D13 on probation or direct him to perform a community service order.  The probation officer thinks that a suspended sentence will be more suitable for D13.

185.  As far as the gravity of the offence is concerned, D13 committed the offence in Charge 2 at the same time when D6 committed the offence in Charge 1. Hence, what I have said in relation to the gravity of Charge 1 are also applicable here. I would also hold that, if a sentence of imprisonment had to be imposed on D13, the proper starting point of the prison term would be 6 months’ imprisonment.

186.  However, in light of the fact that D13 has stayed away from any trouble in the past 9 years, that he has turned a new leaf and run a decent business on his own, and that he has a newborn daughter to take care of, it is clear that a sentence of immediate imprisonment is not called for.

187.  The probation officer considers that a suspended sentence will be more appropriate than putting D13 on probation or community service order. I do not agree with the opinion of the probation officer. When a defendant is ordered to perform a community service order, he is to complete unpaid work as a means to repay the chance given to him by the society, and this will also emphasize the punitive element of the sentence. 

188.  After careful consideration, I am satisfied that D13 is a suitable person to perform a community service order, and that provision can be made for D13 to perform work under such an order. Hence, in respect of Charge 2, D13 is sentenced to perform a community service order for 80 hours, which will be sufficient to reflect the gravity of the offence.

Sentence of D14

189.  D14 was convicted of Charge 6 (conspiracy to commit criminal damage).  He committed the offence on 5 December 2014. He was arrested on 27 May 2017.

190.  D14 is now years 34 old.  He was born on 12 June 1990 in Hong Kong. He has received education up to Form 3. He is now living with his parents, two younger sisters and his 11 years’ old daughter.  He now works as a delivery worker, earning about $20,000 a month.

191.  D14 was sentenced on 9 previous occasions involving a total of 13 offences.  It will be necessary to refer to his last two sentences.

192.  On 21 September 2020, he was sentenced to 46 months’ imprisonment for the offence of conspiracy to wounding with intent to do grievous bodily harm against a high profile political person, as well as 6 months’ imprisonment for driving a conveyance taken without authority, and 6 months’ imprisonment for using a motor vehicle without third party insurance, all sentences were ordered to run concurrently (Case No. DCCC880/2019).  These offences were committed by D14 on 29 August 2019. D14 pleaded guilty to these charges.  According to the Reasons for Sentence in this case, D14 committed the conspiracy offence in Charge 1 with another person who was only 15 years old at the time of the offence, and D14 recruited this other person to commit the offence. Their target was a high profile political person. The learned judge adopted 69 months’ imprisonment as the starting point.

193.  On 4 July 2024, he was sentenced to 4 months’ imprisonment for the offence of trafficking in dangerous drugs.  He was discharged from prison on 13 July 2024.  According to the probation officer’s report, D14 sold cannabis to earn quick money to support his living when he committed this offence.

194.  Miss Priscila Lau, Counsel for D14, submits that there is no sentencing tariff for the offence of criminal damage, that there is no evidence to suggest that any property in the Fulum Restaurant had been damaged, that there is no evidence that anyone has been alarmed or injured in the incident, and that there is no evidence to show that the incident was triad-related.  Miss Lau also stresses that D14 was not the mastermind of the incident, and was not involved in the planning of it. She says that D14 was involved in the incident only on the night in question, and he was not told why there was such a plan.

195.  When I deal with the sentence of D12, I have already expressed my view of the gravity of this offence. What I have said is also applicable here.  In my judgment, unless there are sufficiently strong mitigating factors in favour of D14, a sentence of imprisonment will be called for, and the starting point of the prison term is 12 months’ imprisonment.

196.  In his report, the probation officer considers D14 not suitable for either probation or community service order because of his rapid reoffending record. Miss Lau asks the Court to impose a suspended sentence on D14.

197.  In the present case, the mitigation in favour of D14 is of course his guilty plea and the substantial delay in prosecution. However, during the period when he was not prosecuted, D14 did not make use of the chance to turn a new leaf.  He committed the offence of conspiracy to cause grievous bodily harm with intent, and he even recruited a young boy aged only 15 to participate in the offence. After his discharge from prison, he committed another serious criminal offence of trafficking in dangerous drugs.  It is therefore difficult if not impossible for this Court to accept that because of the delay in prosecution, D14 has suffered the alleged anxieties and stresses, or that he had already become a new person who needs not be punished for his previous offences. 

198.  D14 has pleaded guilty to the charge. He is entitled to have his sentence reduced by one-third.  The starting point of 12 months’ imprisonment is therefore lowered to 8 month’s imprisonment.  In view of the substantial delay in prosecution, he is given another 2 months reduction in the sentence.  His family obligation including his duties towards his 11 years old daughter cannot reduce his sentence further. It is noted that when he committed Charge 6, his daughter has already been born, and he even committed further offences in 2019 and 2024. Hence, I find that there is no other ground to reduce his sentence further, and there is no mitigating factor that should be given further effect to suspend the operation of the prison sentence.

199.  For these reasons, D14 is sentenced to 6 months’ imprisonment for Charge 6.

Sentence of D16

200.  D16 is convicted of Charge 5 (criminal damage).  He committed the offence on 29 November 2014. He was arrested on 28 July 2016.

201.  D16 is now 29 years old.  He was born on 6 September 1995 in Hong Kong.  He received education in Hong Kong without completing Form 3.  He works as a renovation work assistant and part time delivery worker prior to his remand in January 2015.  D16 has already got married.  He now lives with his wife aged 37 who was a storekeeper earning about $16,000 a month.  They have a daughter now aged 2 attending nursery school.

202.  D16 was sentenced on 4 previous occasions involving a total of 6 offences.  On 21 September 2016, he was sentenced to imprisonment for 9 years and 4 months for the offence of trafficking in dangerous drugs.  D16 was released from jail on 24 March 2021.

203.  After his discharge from prison in 2021, D16 managed to obtain employment as a cleansing work foreman with a monthly income of around $20,000 in March 2023.  D16 later worked for another company as a sanitary technician, and manages to earn around $24,000 a month, although he has to work long hours and has little holiday.

204.  Mr. Terry Wong, Counsel for D16, points out that when D16 committed the offence, he was around 20 years old.  Mr. Wong submits that according to the probation officer’s report, D16’s guilty plea was sincere, and he regrets his association with triad members.  D16 has served a long period of imprisonment, and after his discharge from prison in March 2021, he is determined to turn a new leaf and live a good life with his wife and daughter.  In the past 4 years, D16 has demonstrated his self-discipline and law-abiding conduct.

205.  In his report, the probation officer confirms that D16 has maintained stable work engagement after his discharge from prison in March 2021, and that D16 is leading a regular daily routine life after marriage, and that his love for his family motivates D16 to make positive changes. The probation officer considers that the chances for D16 to reoffend is slim. The probation officer however does not recommend putting on D16 on probation (which the probation officer finds not necessary)  or on community service order because of the long hour of work of D16.

206.  Mr. Wong however submits that D16 is willing to perform a community service order to compensate his wrongdoings.

207.  I have already spoken of the gravity of the criminal damage offence (Charge 5)  when I dealt with the sentences of D6 and D9.  What has been said is also applicable to D16.  It is noted that D16 had actually engaged in damaging the property of the pharmacy, together with others, according to the facts that he has admitted. It means that a sentence of imprisonment may be the appropriate sentencing option and that the starting point will be 12 months’ imprisonment.

208.  However, it is clear that the probation officer has given a report favourable to D16. Although D16 had committed a very serious offence of trafficking in dangerous drugs and was sentenced to more than 9 years’ imprisonment in 2016, he manages to turn a new leaf after his discharge from prison.  He manages to obtain continuous stable employment with good income, and he has now got married with a daughter aged only two.  He has pleaded guilty to the charge, and there has been substantial delay in prosecution during which for a period of 4 years he has made significant progress in his rehabilitation. In my view, it will not be appropriate to send D16 back to prison at this point of time.

209.  Having considered the matter carefully, I am satisfied that D16 is a suitable person to perform a community service order. The probation officer has concern that D16 may need to find a new job in order to meet the requirement of the order, but it seems to me that this matter can be easily resolved since the maximum number of hours of unpaid work that D16 can perform each week is not more than 8 hours. I am satisfied that D16 can perform a community service order and that work can be made available for him to perform.

210.  For these reasons, in respect of Charge 5, D16 is sentenced to perform a community service order for 120 hours. This Court considers that D16 has to perform 120 hours of unpaid work to reflect the gravity of the offence.

Sentence of D18

211.  D18 is absent and not legally represented today.  A warrant of arrest has already been issued against him in the hearing on 28 April 2025.  To give the police more time to locate D18, the sentencing of D18 is adjourned to 13 June 2025.