HKSAR v. LUI FUI AND ANOTHER

DCCC1266/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1266 OF 2011

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Reasons for Sentence

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1.  The 1st and 2nd defendant pleaded guilty to a joint charge of causing grievous bodily harm with intent, contrary to section 17(a) of the Offences against the Persons Ordinance, Cap.212. Both were jointly charged with the 3rd defendant. The 3rd defendant pleaded not guilty and his trial was completed yesterday with verdict adjourned.

2.  The 1st and 2nd defendant admit unlawfully and maliciously causing grievous bodily harm to Kong Chi-kit, Johnny, with intent to do him some grievous bodily harm.  The 3rd defendant gave evidence that he did not hold the same intent as the 1st and 2nd defendant, was not part of a joint enterprise and in fact acted as a peacemaker or mediator instead of an attacker.  As I have made clear today several times what another defendant says against a co-accused is not evidence I am going to take into account. 

3.  The 2nd defendant has also pleaded guilty to a second charge of possession of an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap.177.

4.  He admits that on 22 July 2011, the date of his arrest, he had no lawful authority or reasonable excuse to possess an identity card in the name of another.  Under caution, he admitted picking up this identity card and keeping it intending to use it as his proof of identity when and if he was intercepted by the police.  There is no evidence that he actually produced it to the police upon arrest.  The owner of that identity card reported it lost in October 2008, having lost it in mainland China. 

5.  I turn to the facts of this case.

6.  On 29 June last year at about 6.30 in the morning the 1st defendant and PW1 brought the victim to Kwong Wah Hospital unconscious.  He was declared dead at 8.12 am that same morning.  The police arrested the 1st defendant in his vehicle that he had used to drive the victim to the hospital not long after he had left the hospital at about 8 am.

7.  He was arrested for murder and cautioned.  Under caution, he replied, “Ah Sir, I just punched ‘Fei Kit’ a few times.  I even took him to hospital.  It has nothing to do with me.”

8.  The 2nd defendant was arrested, as I said, some weeks later on 22 July.

9.  Both defendants made full admissions under caution.  They described in detail the events of that evening and early morning.  Both defendants demonstrated their attacks on the victim at the scene of the attack.  The salient admissions and details are set out in the Summary of Facts. 

10.  The victim was beaten badly and suffered grievous bodily harm as a result of an attack but, according to the autopsy report, did not die from the beating or from injuries sustained during the beating.  According to the report, he died from adverse effects of methamphetamine, “Ice”. 

11.  I do take into account the following facts.

12.  The attack on the victim took place over a period of time from about 4 am in a shop in Temple Street run by the 1st defendant.  The victim had worked for the 1st defendant but was accused of stealing from the 1st defendant.  These accusations led to this beating.

13.  The 1st defendant admits punching the victim in his abdomen about twice after bringing him to the store at about 4 am with the 2nd defendant.  The Summary of Facts state he also punched the victim’s arm, chest and back.  He says the 2nd defendant and another beat the victim as well, kicking him.  The victim slumped to the ground and had obvious breathing difficulties.  The 3rd defendant then gave CPR and later mouth-to-mouth resuscitation to try and help the victim.

14.  There were other people in the shop at that time including PW1, 2 and 3 who gave evidence in the trial of the 3rd defendant. When it was obvious that the victim was in serious trouble, the 1st defendant fetched his car and the victim was rushed to hospital.  Upon arrival at the hospital, the attending ambulancemen were asked to help.  

15.  The 2nd defendant admits being angry with the victim because the victim had stood him up earlier that evening.  He told the 1st defendant who later arranged to meet the 2nd defendant in his shop with the victim.  He says that at the store the victim apologized to him, the 2nd defendant.  The 2nd defendant assaulted the victim by punching him.  He admits that he did tell the victim not to yell or he would be hit more and harder.  He admits trying to gag the victim’s mouth with a strap.  He admits trying to hook the victim’s mouth with a 6-inch carabiner hook but when the victim shouted, he stopped.  The victim’s DNA was found on the opening of a carabiner.

16.  He admits the victim was assaulted by himself, the 1st defendant and another until he then fell to the ground and was found to be conscious.  He also recounts how CPR and mouth-to-mouth resuscitation was attempted but failed to resuscitate the victim.

17.  I have heard full mitigation today and the background of both defendants.  Some further explanations as to the cause of events that evening have also been put forward.  And I have also taken into account mitigation letters submitted today.

18.  Both defendants’ plea is their best mitigation. It expresses remorse.  Neither defendants have clear records, but neither have an obvious history of violence or violent tendencies.  And I repeat that I will sentence on the basis of what each defendant has admitted and the admitted facts. 

19.  Obviously, injuries suffered by the victim will be very relevant in sentencing.  The victim’s autopsy report I have before me is Exhibit P7 in the 3rd defendant’s trial.  It sets out all the injuries found on the victim’s body and what is listed includes numerous bruises; on his head area there were four; on his body there were five; and his legs there were two; all of varying sizes and colour.  On his neck there was a 5.3 cm long incised wound, superficial.  And there was a laceration and an abrasion on two areas of his lips; one on the inside of his lip and one on the outside.

20.  And, more seriously, he did suffer fractures of the ribs.  Clearly, two fractures were as a result of an attempt to resuscitate him.  There were also linear fractures of the side of the seventh and eighth rib.  There were also two comminuted fractures, similar to linear fractures, of the tenth and eleventh rib at the back.

21.  It has been said in many authorities that all section 17 offences are serious.  And I quote Burrell J in HKSAR v Yuen Wai Kui [2005] HKLRD 343 where he says all section 17 offences are “serious because they all contain the ingredient a defendant intended to inflict really serious injury at that time.”

22.  In fact, it can be said the wounds inflicted, if not so serious, are of secondary significance.  The gravamen of this offence is the intention of the defendants.  I am sure that, and upon their admissions, the 1st and 2nd defendant went to hurt the victim and did seriously hurt the victim. 

23.  The other relevant factors are as follows.  I find it was a deliberate and planned attack.  Here, the victim was intended to be punished and he was punished.  It was arranged to take him or meet him in the early hours of the morning in the shop, and this was not one on one, it was two, if not three, on one.  I do note that no weapons were used to hurt the victim.  The strap and the carabiner, I take into account, but did not cause the main injuries.  I do take into account that blows were rained upon the victim’s body periodically and over a period of time.  I am sure that the victim did not fight back.  At most, he tried to soften the blows to his body.

24.  All sentences depend on the particular facts of each case.  The maximum for a section 17 offence is life imprisonment. However, it has been said often that a section 17 offence will attract between 3 to 12 years’ imprisonment. 

25.  I have considered the admitted facts and I have heard evidence from prosecution witnesses.  But they do not differ greatly to what has been admitted by these defendants, certainly not to the extent that it will affect the sentence.  I did not find it necessary to consider advising defence counsel to call evidence, to be fair to each defendant; it will make no difference.

26.  What the defendants agree is that there was a joint enterprise.  After considering the facts, I do not distinguish between the roles of either the 1st or the 2nd defendant.  This is not a case where clearly one can determine who delivered the heaviest blow causing the most serious injury.  I have decided not to draw any distinction between the different degrees of participation in this joint enterprise. 

27.  I refer myself to the authority of HKSAR v Sze Kwan Lung & others, FACC5 and 6 of 2004.  The Court of Final Appeal said at paragraph 34:

“Each participant is criminally liable for all the acts done in pursuance of the joint enterprise. And whether or not he intended it, he will be criminally liable for any such act if it was of a type which he foresaw as a possible incident of the execution of the joint enterprise and he participated in the joint enterprise with such foresight.”

28.  The 2nd defendant faces Charge 2.  I have looked at his explanation as to why he possessed an identity card relating to another.  He readily admitted it was to use to hide his identity if stopped by the police.

29.  Normally, possession of an identity card relating to another would attract a 12-month starting point, even if the defendant was lawfully in Hong Kong.  If an accused used it, this would attract a 15-month term of imprisonment after a guilty plea.  However, I accept the 2nd defendant did not use it in this situation. 

30.  Defendants, please stand up.   I have considered mitigation put forward on your behalf, your pleas of guilty, the facts of the case, the relevant factors I have set out already, the injuries suffered by the victim, the gravamen of this offence and, for Charge 1, I will find appropriate a starting point of 4 years’ imprisonment.

31.  Both of you are entitled to a discount of one-third for your pleas.  After discount, both defendants are sentenced, for Charge 1, to 2 years and 8 months’ imprisonment. 

32.  For the 2nd defendant, for Charge 2, I take a starting point of 12 months’ imprisonment.  You are entitled to a discount of one-third for your plea, I reduce Charge 2 to 8 months’ imprisonment.  Having considered the totality principle, I order that half, 4 months, be served consecutively to Charge 1 and the balance concurrently.

33.  1st defendant, it is a sentence of 2 years 8 months.  2nd defendant, a sentence for Charge 1 and 2 together, 3 years’ imprisonment.  Do you understand?

1st Defendant: Yes.