HKSAR v. CHAN MING LEONG AND ANOTHER

DCCC 704/2021

[2022] HKDC 866

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 704 OF 2021

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  D1 is convicted after trial on Charge 2 common assault and Charge 5 wounding with intent.

2.  D2 is convicted after trial on Charge 1 common assault and Charge 3 criminal damage.  He is acquitted on Charge 4 assault occasioning actual bodily harm and Charge 6 for common assault.

Record

3.  D1 has 3 previous convictions.

(1)  On 7 June 2001 he was sentenced to 2 years’ imprisonment for theft.

(2)  On 7 February 2001 he was sentenced to 8 weeks’ imprisonment for ill-treatment/neglect of child.

(3)  On 2 April 2009 he was fined for HK$3,000 for dropped or allowed object to fall from height.

4.  D2 has a clear record.

5.  Mr Pang, the defending senior counsel mitigates for D1 and urges for a lenient sentence.

D1’s background

6.  D1 was born in Fujian, China in 1964.  He is now 57.  He studied up to Form 1 in Fujian.  He came to Hong Kong in 1988 for work.  He started off working as a textile factory worker, then as a construction worker and started his own construction company in around 2005.  In return for his dedication to work, his company made a considerable revenue of around HK$4 million annually prior to the outbreak of the Covid-19 pandemic.  The business of his company has decreased drastically since and has almost halted.  He has been taking up part-time jobs at construction sites to make a living, with a monthly income of around HK$20,000 to 30,000.

7.  He is married and lives with his wife and 14-year-old son who is studying Form 3.  His wife is a housewife, and he is the sole breadwinner of the family.  He is also financially supporting his elderly parents who live in Hong Kong with a few thousand dollars per month.  He also has a close bond with his parents-in-law.  Unfortunately, his father-in-law passed away recently and the funeral will be held on 21 August 2022 which he cannot attend due to his conviction.

8.  Although D1 has 3 previous convictions, they are dissimilar to the present offence.  The last conviction was more than 10 years ago and was a work-related offence.  The other 2 convictions are more than 20 years ago.  His previous convictions should be disregarded.

9.  There is no sentencing tariff for either charges.  Although the customary range of sentence for wounding with intent is 3 to 12 years’ imprisonment, it is not a tariff and 3 years is by no means a minimum term of imprisonment.  The circumstances of the offence and the background of offenders differ from case to case.  Each case is decided on its own facts.

Authorities

10.  Mr Pang refers to 5 authorities as examples where the court adopted a relatively lower starting point.

(1)  HKSAR v Wong Luk Sau [2013] 2 HKLRD 201

(2)  香港特別行政區訴蔡天轉 DCCC 562/2014

(3)  HKSAR v Ng Wai Mun [2018] HKDC 274

(4)  HKSAR v Chow Benjamin also known as Tseng Wesle DCCC 650/2016, unrep, 7 April 2017

(5)  HKSAR v Tsang Kwong Shing [2018] HKDC 764

11.  The well established factors relevant in determining the gravity of the offence and culpability of the offender are set out under paragraph 11 of the written submission.

D1’s mitigation

12.  Mr Pang submits the present case falls within the lower end of the spectrum among cases of the like offence and warrants a more lenient sentence, by encompassing the following circumstances:-

(a)  D1’s acts were unpremeditated;

(b)  D1 hit PW1 aiming to help D2 and separate D2 from PW1, who was at that time pinning D2 on the ground. While his actions have been found to be disproportionate, it happened at the spur of the moment. In the premises, the criminality and culpability of D1 is of a much lesser degree than the more common situation where verbal disputes escalated to violence;

(c)  D1 acted on his own;

(d)  Although a rock was used, it was simply picked from the ground and the first thing that came to hand. It is a far cry from the cases where wounding was caused by knives or other such weapons;

(e)  The incident lasted for a very short duration within 2 to 3 seconds;

(f)  PW1’s injuries which included laceration of scalp requiring 3 stitches are relatively minor. He was discharged immediately after suturing. He had a speedy recovery and there is no permanent disability or residual injury or any other long term effect.

13.  The intention of D1 was to protect and help D2.  It can be distinguished from the unprovoked attack in the case of 蔡天轉 and Tsang Kwong Shing.  The level of force used and the injuries suffered by PW1 are less serious than that in 蔡天轉, Ng Wai Mun and Chow Benjamin.

14.  D1 is a hardworking and responsible man who strives for work as well as takes good care of his family.  He acted out of character in the present incident.

15.  In relation to the common assault, this is a minor case of common assault which did not extend to any physical contact.

16.  As the 2 charges arose from the same series of event, it is submitted that insofar as custodial sentences for both offences are considered, they should be ordered to run concurrently.

Consideration

17.  I accept D1’s acts in this episode were unpremeditated.

18.  Regarding the charge of common assault, based on the video evidence, D2 was the one who picked up two stones from the ground first, mimed the stone in his right hand at PW1, then he dropped the stones on the ground and walked away.  D1 for no apparent reason picked up one stone, walked up close to PW1, raised his right hand and acted as if he was going to throw the stone in his hand at PW1 or used the stone to hit PW1.  P8 photo (32)  and (33)  depict the threatening manner and aggressive look on D1’s face.  I accept there was no physical contact but D1’s manner was more intimidating if compared with D2.

19.  Regarding the charge of wounding with intent, based on the video evidence, I accept D1 was trying to help D2 who was lying on the ground with PW1 on top of him.  According to PW1’s evidence, at that time he and D2 were grabbing each other’s hands or arms.  PW1 did not assault D2.  Neither did D2 say in his evidence he was assaulted by PW1 nor yelled out of pain.  As a matter of fact, on the video we could not hear any yelling at all when D2 was under PW1’s body.  Yet, in such circumstances, when PW1 and D2 were scuffling with each other on the ground, DW2 on one side was pulling PW1’s arm, D1 attacked the defenceless PW1 with a stone by hitting PW1 repeatedly on his head and body.  At that juncture, D1 was not acting on his own.  Although I accept D1 was trying to help D2, I found D1’s attack was malicious and no justification whatsoever for him to attack PW1 in such a manner and the force he used was totally out of proportion.  As mentioned in my findings, I examined P1 the stone seized by the police.  It is a very hard piece of stone with sharp edges.  I have no doubt that when D1 was holding this stone in his hand, he must have known using it as a weapon to hit another person especially on the head could cause grievous bodily harm.  While I accept PW1 was discharged from hospital after treatment and has fully recovered without any permanent disability, I do not agree with Mr Pang’s submission that the injuries sustained by PW1 on his head which required 3 stitches were relatively minor.  It is my view that PW1 was lucky not to have sustained much more serious injuries.

20.  There is no sentencing tariff for common assault and wounding with intent.  For common assault, the maximum sentence is 1 year’s imprisonment.  Wounding with intent is a serious offence.  The maximum penalty is life imprisonment.

21.  In HKSAR v Roka Sijan CACC 281/2017, the applicant was convicted on 2 charges of wounding with intent for attacking 2 victims with a lethal weapon (a kukri knife)  was sentenced to imprisonment for 5 years and 4 years respectively. The Court of Appeal stated “Any form of violence must be visited by condign punishment in order to serve the purposes of retribution and deterrence.  This is especially true in cases of wounding, where the element of the offence is that the offender intended to inflict really serious injury on the victim. Whilst there are no sentencing guidelines for wounding, it has been said that the usual range will be between 3 to 12 years’ imprisonment, although this will very much depend on the particular circumstances of each case.”

22.  I have examined the 5 authorities referred to by defence counsel in support of his plea for lenient sentence on behalf of D1.

23.  In this case, I accept:-

(a)  The offences committed by D1 were unpremeditated. Their party went to the subject location for inspection. The stone used by D1 was picked up on the ground.

(b)  D1’s attack on PW1 was to help freeing D2 who was under the body of PW1. It happened at the spur of the moment.

24.  Although D1 has previous convictions, none of them related to violence.  The last conviction is more than 10 years ago, and the other 2 are more than 20 years ago.  His previous convictions can be disregarded.

25.  For common assault, for there was no physical contact with PW1, the appropriate sentence is 14 days’ imprisonment.

26.  For wounding with intent, I accept the offence was unpremeditated and there are special circumstances for the scuffling between D2 and PW1 happened all of a sudden, D1 acted in the spur of the moment aiming to help D2, the criminality and culpability is of lesser degree.  The facts of this case is less serious than the facts in the case of 蔡天轉, Ng Wai Mun, but is more serious than the case of Tsang Kwong Shing.  This morning, I received from defence counsel 2 letters written by D1’s wife and his parents for mitigation.  I have considered their pleas for leniency, and all the mitigating factors.  The appropriate sentence to be imposed on this charge is 12 months’ imprisonment.  This is the sentence I impose on D1 for this charge.

Totality Principle

27.  As these 2 offences were committed in the same episode within a matter of seconds, the sentences should run concurrently.

D2

28.  Mr Harris, the defending senior counsel mitigates for D2.

D2’s background

29.  D2 was born in Mainland China in 1964.  He is 58 years old.  He received his education in China and received doctorate from the university in the Mainland and Russia.  He came to Hong Kong in 1992.  He is and was a businessman before his arrest in this case.  He is married and lives with his family in Hong Kong.

Mitigation

30.  Mr Harris urges the court to deal with D2 by way of financial punishment for both charges.

31.  He submits D2 has a clear record, formerly of positive good character and impeccable credentials, has now lost that good character.

32.  D2 is a very successful entrepreneur, kind-hearted, genuinely devotes his care both to his family and the community in Hong Kong and China, and also has had remarkable achievements.  All of the above is reflected in the letters written by his character witnesses Dr Tsoi Wing Sing (D2-15)  and Dr Stephen T F Tai (D2-16)  both of whom are highly respectable members of the society.

33.  Mr Harris submits this unfortunate episode contains the following salient features:-

(a)  The episode was one of those spur of the moment incidents. Clearly, D2‘s act was not premeditated and was simply acting out of character (proposition accepted by prosecution).

(b)  As regards Charge 1, D2 did not inflict any injuries on PW1. The stone was thrown down onto the ground and in the event not used to cause harm.

(c)  A degree of contribution (if not provocation)  on the part of PW1.

(d)  D2 was the one trying to calm the situation after the event.

(e)  D2 himself also sustained injuries in this episode. This morning I received from defence counsel an updated medical report on D2’s injuries thereby I learnt that up todate D2’s left shoulder has yet to recover fully and follow-up treatment is still required.

(f)  The offences D2 is convicted for are not excepted offences and would routinely be dealt with by way of moderate financial penalty, if not bindover.

(g)  Part of a neighbour dispute.

(h)  Any anger and/or emotion on D2’s part was triggered by what had happened at the scene. D2 was acting wholly out of character in this spontaneous and isolated incident.

(i)  This unfortunate episode is likely to be his only brush with the law. The chance of D2 re-offending is extremely remote.

Consideration

34.  Based on the evidence before me, I believe D2 did bear grudges against PW1.  According to DW1 Mr Philip Wong’s evidence, PW1 was unhappy about D2’s construction works undertaken in the village.  He testified at the meeting convened in February 2020, less than 2 months before this incident, for the residents of the village to provide their feedbacks to the construction plan, PW1 interrupted from time to time expressing his personal opinion on two aspects: (1)  the destruction of the natural environment which was a nuisance to him, and (2)  the enclosing walls erected at D2’s property was illegal and blocked his view.  PW1 wanted the walls be taken down as soon as possible.  PW1 not only expressed his discontent at the meeting, but also put forward his complaints to various government departments and even to the police.  DW1 said he has no idea whether D2 was unhappy with the complaints for D2 did not express if he was upset, angry or unhappy with PW1’s complaints but did tell them to take down the enclosing wall as soon as possible.  It means D2 was fully aware of PW1’s complaints and troubles he made.  Under cross-examination by prosecution, D2 agrees PW1 was meddlesome before this incident for his consistent complaints.  This has bearing to D2’s response to PW1 in this episode.

35.  Having said that, I accept his counsel’s submission, D2 acted on the spur of the moment, there was no premeditation whatsoever.  It is apparent D2 was unhappy with PW1 filming them, he lost his control momentarily and reacted the way wholly out of his character.

36.  For Charge 1, according to the video evidence, D2 suddenly picked up two stones from the ground, drew his right hand backward and mimed throwing the stone in his right hand at the direction of PW1.  He then dropped the stones onto the ground.  I have no doubt by miming the stone at PW1, D2’s intention was to frighten PW1.

37.  D2 pleaded not guilty and was convicted after trial.  In deliberating sentence, I have to take into consideration the stones picked up by D2 were not small, if D2 did throw the stone out and hit PW1, the injury could be serious.

38.  For Charge 3, the maximum sentence is 10 years’ imprisonment.  The property D2 damaged was a mobile phone belonged to PW1.  He pleaded not guilty.  His defence was he did not commit the offence.  He was convicted after trial.  His act of throwing PW1’s mobile phone onto the concrete path was captured on the video.

39.  I accept D2 acted on the spur of the moment for he did so shortly after he got free from being trapped under PW1’s body.

40.  I accept his counsel’s submission that for these two offences D2 was wholly acting out of his character, his anger and or emotion was triggered by PW1 filming him and his company.  He is a respectable member of the society with remarkable accomplishments (as set out in the letters written by his character witnesses), this unfortunate episode is likely to be his only brush with the law, the chance of him re-offending is extremely remote.  I agree this is a suitable case to deal with D2 by way of financial punishment.

Sentence

41.  On Charge 1, D2 is fined the sum of HK$10,000.

On Charge 3, D2 is fined the sum of HK$10,000.

42.  The fine imposed be paid into court within 7 days from the date of this order.  In default, D2 be imprisoned for 21 days in lieu of payment.