HKSAR v. TANG TSZ LOK

DCCC 507/2021

[2023] HKDC 70

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 507 OF 2021

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REASONS FOR SENTENCE

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The Charges

1.  D1 pleaded guilty before me to three charges of wounding with intent, contrary to section 17(a)  of the Offences against the Persons Ordinance, Cap 212.

2.  The particulars of the offences aver that D1 and one Kwok Sau Fung (D2)  on 12 September, 2019, at “Bar Pacific”, Basement Floor, Nos 368-374 Prince Edward Road West, Kowloon City, together with others unknown, unlawfully and maliciously wounded Ms. Yip Mei Ling (“Yip”), Mr. Lam Wa Fung (“Lam”)  and Mr. Wong Chung Hang (“Wong”)  with intent to do grievous bodily harm to each of them.

Facts

3.  The attack on the three victims named in the charges took place shortly following an altercation between two groups of customers consisting of Lam and Wong and another three unknown males over the use of the karaoke system inside the bar.  The argument lasted some 20 minutes since 3:33 a.m.

4.  D1 only entered the bar after the argument was over at 3:54 a.m.  and he later left the bar with the three unknown males and they went into a convenience store nearby to buy facemasks.

5.  At 3:58 a.m.  the CCTV footage showed that D1 together with another twelve men wearing masks (“the assailants”), descended into the basement and approaching in the direction of Yip, Lam and Wong inside the bar.  One assailant first attacked Lam with a plastic rod.  Immediately, the other assailants, including D1, rushed forward from behind and used chairs, bottles and umbrella stands to attack the three victims.  At the material time, D1 was seen moving forward and backward and stood behind the assailants, looking in the direction of Yip, Lam and Wong.  During the attack, Yip was hit on the head, became unconscious and collapsed to the ground.  The attack lasted around one minute.  After the attack, all the assailants, including D1, fled and exited the bar. 

6.  The three victims all suffered injuries as a result of the attack and were taken to Queen Elizabeth Hospital for treatment. 

Medical finding of Ms. Yip

7.  Upon medical examination, the following injuries were revealed, namely, (1)  Bruises over left forehead; (2)  a 4 cm V-shaped laceration over right face; (3)  a 3cm laceration over rear scalp; (4)  a 3cm laceration over right forearm; and (5)  bruises and tenderness over left middle finger.  Skin suturing was done in Accident and Emergency Department for superficial laceration of left parietal skull, right forearm and right ear.  Wound irrigation, debridement, suturing of right face deep laceration (reaching maxilla)  was done by surgical department in the surgical ward.

Medical finding of Mr. Lam

8.  Upon further examination the following injuries were revealed: (1)  Two laceration on his left forearm; (2)  Laceration on the top of his head; (3)  swelling and bruises on his right forearm and right elbow; and (4)  X-ray of his left forearm and skull showed no fracture.

Medical finding of Mr. Wong

9.  Upon examination, the following injuries were found, namely: (1)  a laceration of 3 cm on the top of the left side of his forehead; (2)  a bruise on the left side of his cheek; (3)  a bruise on his right elbow; (4)  swelling, tenderness and a 1 cm laceration on his left forearm; and (5)  a bruise on his left hand.  The findings of an X-ray examination revealed that the ulna of Mr. Wong’s left forearm was fractured.  The diagnosis was open fracture of left forearm.

Background and criminal records

10.  D1 is now aged 28.  He was educated up to Form 2 level.  He is still single and living with his parents and brother in a public housing estate in Kowloon. He was unemployed at the time of the offence but he has worked as a kitchen worker and a transportation worker.

11.  He has a clear record.

Mitigations

12.  In mitigation, Mr. Hui, counsel for D1, acknowledged that in view of the injuries the victims sustained, the assault on the victims was “really serious”, in particular, the attack on their heads and faces.

13.  He emphasized however that D1 only went to the bar at the request of one of the assailants.  Although D1 accompanied some of the assailants to buy facemasks, he did not physically assault any of the victims inside the bar and he just left with the assailants thereafter.

14.  Mr. Hui has correctly submitted that the offence is always regarded as serious and the usual range of sentence is 3-12 years’ imprisonment.  He further referred me to two Court of Appeal cases which laid down the sentencing considerations for this type of the offence.

15.  Finally, Mr. Hui urged me to give D1 the full discount on account of his timely plea and as all the three charges arose from the same incident, he further submitted that the term, or a substantial part thereof, of each charge could be served concurrently with one another.

Sentencing considerations

16.  The Court of Appeal has repeatedly stressed that the sentences for this type of offence are very much case and fact specific and it is impossible to laid down a tariff of sentence and hence a wide range of 3-12 years is suggested to encompass the various degrees of severity and criminality.

17.  In HKSAR v Ma Tik Lun Dicky, (a Chinese Judgment)  CACC 112/2013 (unreported)  10 April, 2014, the Court of Appeal referred to its earlier decision in HKSAR v Chan Chun Tat [2013] 6 HKC 225, and reiterated that “wounding with intent” is a serious offence which warrants a deterrent sentence, and that the major sentencing considerations are[1]:

(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).

18.  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. )

19.  The present case is a coward and senseless attack by a gang of no less than thirteen assailants against a relatively small group of five persons including the three victims.  The attack arose from just a verbal dispute between Lam and Wong and the three unknown males at the bar.  After the argument subsided, the assailants, obviously aggrieved, requested and summoned the assistance of other ten males including D1 and the gang then left the bar and went to buy face masks and later returned to the bar again to launch a group attack on the three victims.  One of the assailant first attacked Lam with a plastic rod while the other assailants just picked up the umbrella stands and chairs in the bar and also used their bare hands and fists to attack the victims.

20.  As Mr. Hui has conceded, and in my view properly, the group attack by this gang of thugs against the three victims were indeed really serious and the extent of their injuries were already reflected by their injuries as more particularly described in their medical reports and as shown in their photos taken in the hospital by the police.  The attack was clearly premediated as the assailants had called for reinforcement and they all wore face masks during the attack in order to conceal their identities.  The victims’ group was clearly out-numbered by the assailants and also defenceless as they were totally unprepared since the attack was only initiated by the gang after the argument has already subsided for a while. 

21.  That said, fortunately, the attack was only brief and it lasted around one minute only.  I was told that the injuries suffered by the victims were now fully recovered and apart from scars, there was no permanent injury or disability suffered by any of the victims. The types of weapons used during the attack were not the most lethal and most of them were just randomly picked up in the bar.  As to the role played by D1 in this attack, although I accept he was not the principal offender and he did not physically take part in the assault on any of the victims, by his acts and conducts, he has already lent his support and encouragement to the other assailants and he had clearly foreseen and intended to do bodily harms to the victims whom he bore no grudge and thus for all intent and purposes, he was still a party or a member of the assailant group and must be criminally responsible for the injuries inflicted on all the three victims during the attack.

Order

22.  Taking into consideration of all the circumstances of the case and the relatively minor role played by D1, the proper sentence for each charge is 3 ½ years’ imprisonment.  The only effective mitigation is his plea of guilty for which he is entitled to a full one-third discount.  The sentence on each charge is therefore reduced to 28 months’ imprisonment. 

23.  Although each charge represents a separate attack on each victim, the three charges clearly arose from the same incident and because of the totality principle, I finally order that 3 months of the imprisonment terms of Charge 2 and Charge 3 to run consecutively to the imprisonment terms of Charge 1, making a total imprisonment term of 34 months for the three charges.