HKSAR v. CHEUNG HANG PO AND OTHERS

DCCC 700/2025

[2025] HKDC 2050

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 700 OF 2025

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REASONS FOR SENTENCE

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Plea

1.  Upon the 1^st to 4^th defendants’ (“D1 to D4”)  guilty plea and admission of facts, D1 to D4 are convicted as charged. 

Agreed facts

2.  In the evening on 15 September 2024, police officers were tasked to observe a private vehicle bearing registration mark UP1591 (“the Car”)  and a private vehicle bearing registration mark YX5256 (“the Vehicle”).  Later in the evening, police officers saw D1 to D4 approaching the Vehicle, which was parked at a parking space located at 2^nd Floor, Ming Tak Estate Car Park, Tseung Kwan O, New Territories, Hong Kong (“the Car Park”). The police officers then approached the Vehicle. Upon approaching the Vehicle, D1, who was sitting at the front passenger seat, was seen holding two rod-like objects (each was about 1 meter long).  At the same time, the police officers saw D2, D3, who was holding a yellow car plate with his hands, and D4 sitting at the back passenger seat.

3.  The police officers then declared their identity and demanded D1 to D4 to get off the Vehicle.  D1 to D4 refused to cooperate and were later being brought out of the Vehicle by the police officers for investigation. 

4.  Upon search of the Vehicle, the following items were found on the Vehicle:

(a)  5 beef knives, a plastic ruler-shape object, a box of mask, a plastic bag containing five pairs of gloves, a front car plate bearing mark YN7691 and 2 bottles of pepper spray were found at the driver seat;

(b)  2 sledgehammers with plastic handle, a set of car plates bearing mark UP1591 and a mask were found at the front passenger seat;

(c)  A set of car plates bearing mark NH3070, 4 walkie-talkies and 2 caps were found at the back passenger seat; and

(d)  The car key of the Vehicle was found near the right front wheel.

5.  During the investigation at the scene, the Car was found to approach the vicinity.  The police officers approached the Car and demanded the driver to get off the Car for investigation.  However, the demand was ignored by the driver and the driver fled the scene with the Car.  Subsequently, the Car was found being abandoned in the neighbourhood.  Upon search of the Car, 4 pair of gloves, 4 beef knives, a hammer, a set of car plate with mark YW2666 and a back car plate with mark YN7691 were found.

6.  D1 was arrested by PC17616.  Under caution, D1 admitted that they planned to chop others in the night and that he was responsible for intercepting and hammering the target car.  In the subsequent video-recorded interview, D1 admitted under caution that: he was responsible for stopping the target car and to break the glass of the target car with a hammer; he was told by a person about the plan to stop and break the glass of the target car earlier in the day; and he went to the Car Park from Kwun Tong by taxi on his own and got on the Vehicle even though he was not clear as to who the driver was.

7.  D2 was arrested by DPC15046.  Under caution, he claimed that the knives and equipment found on the Vehicle would be used by him for self-defence.

8.  D3 was arrested by DPC19819.  Under caution, D3 admitted that his “big brother” told him and his fellow “brothers” to teach someone a lesson and that he had followed them.  In the subsequent video-recorded interview, D3 admitted under caution that: he and the three other persons, who were arrested together with him, were told to teach someone a lesson, that is, to threaten and to assault that person; and he knew those three persons by their nicknames.

9.  D4 was arrested by DPC13738.  Under caution, he admitted that he was merely following the instructions to get knives and hammers from the Vehicle and that he had to provide assistance in accordance with the instructions.

10.  Investigation revealed that both the Vehicle and the Car were registered by Mr CHEUNG.

11.  CCTV of the Car Park showed that:

(a)  The Car was parked on the 3^rd Floor of the Car Park on 31 August 2024;

(b)  On 31 August 2024, D3, D4 and unknown person got on the Car. The Car was driven from the 3^rd Floor to the 2^nd Floor and was then parked in front of the Vehicle. D4 was seen getting off the driver seat of the Car while D3 was seen getting off from the front passenger seat;

(c)  D3 was then seen picking up a bag of items from the Car and moving the said bag to the Vehicle. Afterwards, D3 and D4 left the Car Park with the Car;

(d)  On 14 September 2024, D1, D3 and D4 approached the Vehicle. D1 and D4 were seen taking some items from the Vehicle. Afterwards, D1, D3 and D4 walked away with the items taken from the Vehicle and left the Car Park; and

(e)  D1 to D4 boarded the Vehicle shortly before the police officers approached the Vehicle.

12.  At the material time, D1 to D4 had conspired together with other person(s)  unknown to use the items seized from the Vehicle to unlawfully and maliciously cause grievously bodily harm to other person(s)  with intent to do so the said other person(s)  grievous bodily harm and that they were about to carry out the said agreement but for they were being intercepted by the police.

Defendants’ background and mitigation

13.  D1 is now aged 23, single, his education is up to form 4.  From 2019 to 2020, he has 3 previous convictions of which two are violence related.  Counsel for D1 stressed on early guilty plea and verbal remorse.

14.  D2 is now aged 26, single, his education is up to form 2.  From 2013 to 2021, he has 15 previous convictions of which three are violence related.  Prosecution said D2 is a recidivist and the defence agreed to it.  This is an aggravating factor.  Counsel for D2 mentioned his father is suffering from Nasopharyngeal Cancer but he clarified that at the time of this offence D2 knew of his father’s cancer diagnosis.   

15.  D3 is now aged 27, single, his education is up to form 2.  He has one previous conviction in 2023, which is fighting in the public place.

16.  D4 is now aged 26, single, his education is up to form 3.  He has two previous convictions in 2023 and 2025.  The last conviction is wounding or inflicting grievous bodily harm and D4 received 6 weeks’ imprisonment.  Prosecution said D4 committed the present offence while on bail and the defence agreed to it.  This is an aggravating factor. 

17.  In gist, Counsel for D2 to D4 stressed on such mitigation points as early guilty plea, cooperation with police (but I disagree as D2 misled the police and said those lethal weapons (5 beef knives and 2 big hammers)  were for self-defence. He also mentioned that the conspiracy was not materialized.  There was no specific target and they were relatively young.  

Discussion

18.  During the hearing, the Prosecution provided me with the photo album relevant to sentence and the approximate measurement of the size of beef knives and 2 big hammers.  I have considered the facts of this case, the criminal records of the defendants and their respective mitigation.

19.  To begin with, the personal background of the defendants is not a valid factor for mitigation, especially for serious offence like this.  The lack of aggravating factor does not mean it becomes a mitigating factor. 

20.  I have considered cases relevant to the charge, including HKSAR v Yuen Wai Kui CACC 280/2004, SJ v Hung Kar Chun CAAR 9/2010, HKSAR v Chan Chun Tat CACC 317/2012, HKSAR v Ma Tik Lun Dicky CACC 112/2013, HKSAR v Chow Benjamin CACC 118/2017, Gurung Swatantra CACC 126/2017. 

21.  The maximum sentence for the present charge is life imprisonment.  From the above cases, the guiding principles are as follows.

22.  Firstly, there is no sentencing tariff for this kind of offence because facts vary much from each case. 

23.  Secondly, the range of 3 to 12 years is not a sentencing tariff, it is just a suggested band of sentence and the court is not obliged to impose 3 years’ imprisonment as the minimum term.

24.  Thirdly, in HKSAR v Ma Tik Lun Dicky CACC 112/2013, the Court of Appeal encapsulated the sentencing principles for an offence of wounding with intent:

“40. In HKSAR v Chan Chun Tat [2013] 6 HKC 225, the Court of Appeal reiterated that “wounding with intent” is a serious offence which warrants a deterrent sentence, and that the major sentencing considerations are :

(1)  the extent to which the assault was premeditated;

(2)  the motivation underlying the assault;

(3)  the mental or emotional state of the assailant;

(4)  whether the assailant was acting under the influence of alcohol or drugs;

(5)  whether the assault was committed by the assailant alone or as part of a group;

(6)  the type of weapons employed;

(7)  the level of force used;

(8)  the injuries caused to the victim;

(9)  the effect of the assault upon the victim (and those close to him or her).

......

41. Furthermore, the aggravating factors for this type of wounding case are: (1)  the defendant was the principal offender; (2)  the assault was committed in company; (3)  the assault was unprovoked; (4)  the assault took place in a public place; (5)  the assault went on after the victim had fallen down; (6)  the assault went on after the victim became unable to defend himself; (7)  the victim suffered serious and lasting injuries; (8)  at the police interview, the defendant misled the police as to the facts, indicating a lack of remorse. See paragraph 13 of the Reasons for Judgment in HKSAR v Chui Kwok Ming, CACC 380/2013 (unreported), 27 March 2014.”

25.  Applying the above factors into the present case with necessary modifications, aggravating factors against the defendants include: D1 held the rod (which is subsequently found out to be the handle of the 2 big hammers)  and the gang attack was ready, the attack scheme was premeditated (with caps, mask, pepper sprays, 3 sets of other vehicle plates to avoid police detection), the crime involved at least 4 accomplices (mastermind not counted), lethal weapons were found (5 beef knives and 2 big hammers).

26.  I would adopt the starting point of 3 years for the present charge, and 4 years after taking into account the above aggravating factors.  D2 is a recidivist and his sentence is enhanced from 4 years to 4 years and 3 months’ imprisonment.  D4 committed the present offence while on bail.  His sentence is enhanced from 4 years to 4 years and 3 months’ imprisonment.  After one third discount for their early guilty plea, D1 and D3 are sentenced to 32 months’ imprisonment.  D2 and D4 are sentenced to 34 months’ imprisonment.