HKSAR v. CHAN CHUN TING

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

[2025] HKDC 1016

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.  On 25 February 2025, D18 appeared before me, together with another 11 defendants (i.e. D3, D4, D6, D8 to D14 and D16). He was represented by Mr. Cheung Chi Wai, David, of Counsel on that day. D18 pleaded guilty to Charges 5 and 8 of the Consolidated Charge Sheet, and admitted the facts presented by the prosecution. D18 was convicted of Charges 5 and 8 accordingly.

2.  In the same hearing on 25 February 2025, D3, D4, D6, D8 to D14 and D16 were also convicted of the charges that they faced respectively upon their guilty pleas and the facts they had admitted.  While D10 was acting in person, the other defendants were represented by different counsel.

3.  After hearing mitigation from all defence counsel and D10, this Court adjourned sentencing of all these defendants to 28 April 2025 pending a probation and community order suitability report on each defendant.  All defendants including D18 were allowed to remain on bail on the same terms as before.

4.  On 28 April 2025, D18 did not appear in Court pursuant to his bail undertakings to surrender to custody.  According to Mr. David Cheung, D18 informed his instructing solicitor over the phone that he would not attend the hearing on that day because he felt dizzy and was consulting a doctor.

5.  D18’s claim that he was not medically fit to attend the hearing was doubtful because according to the Probation Officer’s report dated 7 April 2025, although the probation officer had interviewed him on 25 February 2025, he could not contact D18 afterwards and could not discuss with D18 on his rehabilitation plan.  Mr. David Cheung also confirmed that he and his instructing solicitors had not seen D18 after the hearing on 25 February 2025.

6.  In the hearing of 28 April 2025, sentencing of all defendants was adjourned to 12 May 2025 pending preparation of Reasons for Sentence. A warrant of arrest was issued against D18, while Mr. Cheung and/or his instructing solicitors would try to contact D18 and notify him of the adjourned hearing. The probation officer was also directed to provide further report on D18, hoping that the probation officer and D18 might resume contact, and that D18 would have another chance to work out his rehabilitation plan with the probation officer.

7.  In the hearing of 12 May 2025, D18 was still absent.  Mr. Cheung and/or his instructing solicitors also did not appear. Presumably, they had no further instructions from the Director of Legal Aid to act for D18. 

8.  In his further report dated 8 May 2025, the probation officer reported that he managed to contact D18 by phone successfully in the afternoon of 28 April 2025, and advised D18 to report to the court immediately, but D18 showed no response, and even disconnected his phone afterwards.  The probation officer also said that D18’s father had told him that D18 had moved apart and that the whereabouts of D18 was unknown to him.

9.  Except D18, all other defendants were sentenced on 12 May 2025.  Sentencing of D18 was further adjourned to 13 June 2025 so that the police would have more time to apprehend D18 and bring him to Court.

10.  On 13 June 2025 (i.e. today), D18 is still absent.  The police has so far been unable to locate him.  In my view, more than ample opportunities have already been given to D18 for him to appear in Court to enter his further mitigation, and to be informed of his sentence as well as its reasons, but D18 has by his conduct clearly evinced an intention that he will not appear in Court. It is therefore meaningless to adjourn his sentencing further. Accordingly, D18 is to be sentenced in absentia today.

The convictions of D18 (Charges 5 and 8)

11.  Charge 5 is for the offence of criminal damage, contrary to section 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.  Like D18, D6, D9 and D16 also pleaded guilty and they have already received their sentences. 

12.  Charge 8 is for the offence of acting as members of a trial society, contrary to section 20(2)  of the Societies Ordinance, Cap. 151.  It is a joint charge against 6 defendants, i.e. D4, D5, D8, D9, D10 and D18.  Like D18, D4, D8, D9 and D10 also pleaded guilty and they have already received their sentences.

Facts

13.  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 offences committed by D18 and others.

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

14.  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’.

15.  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.

16.  At 5:56 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. 

17.  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 one 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.

18.  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. 

19.  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.

20.  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 8 (against D4, D8, D9, D10 and D18)  – Acting as members of a triad society

21.  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.

22.  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.”

23.  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. 

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

25.  D18 was arrested by the police in 2016.

Criminal record of D18

26.  D18 was sentenced by the courts on 6 occasions involving a total of 18 offences which were the subject matters of the charges in 9 separate cases. 

27.  D18 received his first sentence on 25 June 2015 when he was 21 years old. He was put on probation for 12 months for the offence of assault occasioning actual bodily harm.  He breached that probation order and was sentenced to 2 months’ imprisonment on 9 December 2015. 

28.  On 18 October 2016, D18 was sentenced within the same day for 3 different cases involving a total of 6 charges, i.e. two charges of criminal damage, two charges of assault occasioning actual bodily harm, one charge of possession of offensive weapon in a public place, and one charge of using a motor vehicle on a road against third party risks.  The effective total term he had to serve was 8 months’ imprisonment.

29.  On 17 September 2019, D18 was sentenced to 4 months’ imprisonment for the offence of possession of offensive weapon in a public place (Case No. WKCC3261/2019). According to the Brief facts of this case, D18 was stopped and searched by the police in Castle Peak Road at about 0218 hours on 24 February 2019 when he was found to carry an extendable baton (25 cm in retracted state, 65 cm in fully extended state)  in his shoulder bag.

30.  On 24 January 2020, D18 was sentenced in the District Court to serve an effective total term of 22 months’ imprisonment, in addition to disqualification from driving, for the offences of handling stolen goods (a private car), using a motor vehicle against third party risks, possession of forged vehicle licence, possession of dangerous drugs (0.17 gramme of ketamine)  and possession of offensive weapon (beef knife)  (Case No. DCCC679/2019).  According to the Reasons for Sentence, these offences came to light when D18 was intercepted by the police when he was driving a stolen private car on the road on 25 April 2019.  D18 pleaded guilty to the charges. D18 was released from prison on 6 October 2020.

31.  On 27 September 2023, D18 was sentenced in the magistrates’ court on the same day for 3 cases. In Case No. TMCC1359/2023, he was sentenced to 3 weeks’ imprisonment for the offence of common assault committed by him on 13 December 2014.  In Case No. TMCC1360/2023, he was sentenced to 2 months’ imprisonment for the offence of conspiracy to commit criminal damage committed by him on 16 June 2015 when D18 drove several persons to a location for these people to use paint to spray debt-collecting words on the wall outside a residential building. In Case No. TMCC1361/2023, for two charges of acting as members of a triad society, he was sentenced to 5 months’ imprisonment for each charge, to run concurrently.  These two offences were the typical “blowing the whistle” cases, and were committed by D18 on 15 July 2015 and 18 July 2015 respectively when he performed the role of a “soldier” as described by the Court of Appeal in HKSAR v Yeung Chi Keung[1], HKSAR v Wong Sing Chi[2], and HKSAR v Choy Ka Fai (蔡家輝)  and others[3]. 

32.  The sentences in the 3 cases which D18 received on 27 September 2023 were for offences committed by him during the undercover operation by PW1 as in the present case, and were ordered to run concurrently with each other.  In other words, the sentences in aggregate for these 3 cases were 5 months’ imprisonment.

Personal and family background

33.  D18 is now 31 years old.  He was born on 1 February 1994 in Hong Kong. He received education up to Form 4. He is single.  He lives with his parents and one younger brother. The probation officer reports that D18 worked as a casual worker with unstable income in the past and each job seldom lasted for over one year. He had worked as an airport handyman, cleaning worker and salesman.  After his last imprisonment, he worked as a casual warehouse worker and received daily income of $600 in cash.  On the other hand, Mr. Cheung, Counsel for D18, says that D18 is currently working for a home design company, earning around $16,000 a month, and that D18 has been working for this company since 2022 as a part-time worker.

Mitigation

34.  Mr. Cheung stresses that D18 has pleaded guilty to all the charges laid against him, and saved the valuable court time, and that this is the greatest mitigating factor.  As far as the offence of criminal damage (Charge 5)  is concerned, Mr. Cheung points out that the whole incident inside the pharmacy last for around 10 seconds only, and that D18 was not the instigator or organizer of the incident. Mr. Cheung says that D18 was just following the lead of others and carrying out instructions as ordered.

35.  As to the offence of acting as members of triad society (Charge 8), Mr. Cheung submits that D18 played a relatively minor role in the offence.  He was not the person who “blew the whistle” or instructed the others where to go.  He just played the role of a “soldier”. D18 gathered with others at Chi Lok Market for about 15 minutes. No fight broke out, and the incident did not result in any personal injuries or property damage.  Mr. Cheung says that D18 is remorseful for what he had done.

36.  Mr. Cheung stresses that although D18 has previous convictions, he has been trying to reform himself.  Mr. Cheung says that D18 was arrested for some offences (unrelated to the present case)  and was convicted in 2020.  After serving his sentence of imprisonment, D18 has been trying very hard to stay out of trouble. Since 2022, D18 has secured a regular employment, and he has worked for the same employer until now. 

37.  Mr. Cheung also points out that D18 was convicted in 2023 of the charges in Case Nos. TMCC1359, 1360 and 1361 of 2023, but these cases were for the offences committed by D18 in 2014 and 2016 during the same undercover operation by PW1 as in the present case.  Mr. Cheung submits that if the present case and those 3 cases had been dealt with at the same time, it was most likely that the sentences to be imposed in the present case would run partially concurrent with the sentences imposed in those 3 cases.

38.  Mr. Cheung also submits that there is considerable delay in the prosecution against D18.  Mr. Cheung refers to the Reasons for Sentence delivered by Deputy District Judge L. C. Cheng in DCCC403 & 464 & 970 & 1053/2023 & DCCC599/2024 (Consolidated), which was also a prosecution arising out of the same undercover operation by PW1, and argues that D18 should be dealt with in a manner similar to the defendants in that case, that is to say, the term of imprisonment to be imposed on D18 should be suspended, or that the term of imprisonment should be reduced because of the substantial delay.

39.  Mr. Cheung produces mitigation letters written by D18, his parents and employer for consideration by the Court.

40.  Since D18 has absconded, there is no further mitigation from him after his legal team has ceased to act for him.

Reasons for sentence

41.  When I sentenced D3, D4, D6, D8 to D14 and D16 on 12 May 2025, I had referred to the relevant sentencing authorities and expressed my view on the gravity of the offences[4]. What I had said at that time are equally applicable to D18.

42.  There is no sentencing tariff for the offence of criminal damage or acting as members of a triad society. Hence, the sentence to be imposed on D18 depends on the gravity of the offence committed by him and the factors that may lower his criminal responsibility or in some other ways that may reduce the harshness of the sentence.

43.  In respect of Charge 5 (criminal damage), it is clear from the facts admitted by D18 that the criminal damage episode in question was an organized crime carried out by a triad society 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, D18 was one of the 5 persons who had been tasked to go inside the pharmacy to inflict the damage. D18 admits that he had personally smashed several display shelves, while the man named Le and D16 had also smashed glass cabinets and other items inside the pharmacy with baseball bats.  The attack was clearly organized with D2 acting as lookout who told D18 and the others going into the pharmacy that they had to act quickly as there was no police at that time, and with D6 acting as a driver who would transport some of the culprits and the baseball bats used in the attack away from the crime 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 D18, the appropriate starting point is 12 months’ imprisonment.

44.  In respect of Charge 8 (acting as members of a triad society), the facts admitted by D18 clearly revealed that the offence committed by D18 and the others was a typical case of “blowing the whistle”.  Mr. Cheung is correct in his submission that D18 was playing the role of a “soldier”.  While the Court of Appeal has not laid down a sentencing tariff for this offence, it has expressed the view in Choy Ka Fai that the sentence to be imposed should be similar to those imposed in cases of Yeung Chi Keung and Wong Sing Chi, which means that the appropriate sentence for a defendant who played the role of a “soldier” in a “blowing the whistle” incident is 9 months’ imprisonment after trial.  The sentence is applicable to situations where the “blowing the whistle” incident did not degenerate into the use of violence or actual hostile confrontation between rivalry groups.

45.  The next issue is whether there are mitigating factors that render it inappropriate to impose a term of imprisonment on D18.

46.  When sentencing the other defendants, I accepted the submissions that there had been a substantial delay in the prosecution of the defendants.  This finding is equally applicable to D18.  As stated before, I agree entirely with the analysis given by Deputy District Judge L.C. Cheng in his Reasons for Sentence in DCCC403 & 464 & 970 & 1053/2023 & DCCC599/2024 (Consolidated)  on the issue of delay.  I respectfully adopt the same reasons given by the learned judge, and hold that there has been a substantial delay in the prosecution against D18.

47.  As to the impact of delay on the sentence of a defendant, the authorities are clear. Delay in itself is not a mitigating factor, especially 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. 

48.  In the present case, D6, D9 and D16 have already been sentenced in respect of Charge 5, and D4, D8, D9 and D10 sentenced in respect of Charge 8.  Each of D4, D8, D9 and D16 is sentenced to perform a community service order (for 120 or 160 hours as the case may be), while D10 is placed on probation for 12 months.  D6 is given a suspended sentence, not because he is not a suitable person for performing a community service order, but the condition of his health is such that it will not be appropriate to impose that sentence on him.  All these defendants are spared from serving an otherwise appropriate immediate custodial sentence because during the long period of delay in the prosecution, they have managed to turn a new leaf or made a significant progress towards their rehabilitation, and that it will not be appropriate to sentence them to serve an immediate term of imprisonment.  The same however cannot be said of D18 for the following reasons.

49.  First, after D18 had been arrested in 2016 for the offences he had committed during PW1’s undercover operation, he had committed further offences that had no connection with the undercover operation.  On 17 September 2019, he was sentenced to 4 months’ imprisonment for possession of offensive weapon in a public place, which was an offence committed by him on 24 February 2019 when he carried with him an extendable baton shortly after midnight in the street (Case No. WKCC3261/2019). On 24 January 2020, he was sentenced to an effective total term of 22 months’ imprisonment for 4 offences including handling a stolen private car, using a motor vehicle against third party risk, possession of forged vehicle licence, possession of dangerous drugs (0.17 gramme of ketamine), and possession of offensive weapon (beef knife), and these offences were committed by him on 25 April 2019 (Case No. DCCC679/2019).  It is noteworthy that the offences that formed the subject matters of the charges in DCCC679/2019 were committed by D18 just two months after he had been arrested for committing the offence in WKCC3261/2019.  It appears to be the case that during that period of time, he was not only a drug abuser but also a dishonest person, and it was usual for him to carry with him offensive weapon when he was out in the public place.

50.  Second, while D18 and his parents claim that D18 has learned a lesson during his last incarceration, and turned a new leaf after his discharge from prison, there is no or little evidence to substantiate this claim.  This claim is also clearly incompatible with the fact that D18 has breached his undertaking to surrender to this Court for sentence in accordance with his bail terms, and that he has absconded deliberately.  This shows that he prefers breaking the law rather than shouldering his responsibilities for his past offences.  In my judgment, the behavior of D18 is not consistent with a person who has already turned a new leaf, or has made significant progress in his rehabilitation.

51.  Third, the fact that D18 does not maintain contact with the probation officer demonstrates that he has no intention to serve probation or a community service order, and that no feasible plan for his rehabilitation in the open setting can be worked out.  In other words, D18 has by his own action destroyed any chance for him to get a non-custodial sentence.

52.  I find that imposing a term of imprisonment on D18 is the only viable sentencing option under these circumstances, not to mention that each of the offences committed by him on its own or on aggregate already warrants the imposition of an immediate custodial sentence.

53.  I have already spoken about the gravity of the offences in Charges 5 and 8.  I shall adopt 12 months’ imprisonment as the starting point for the sentence to be imposed on Charge 5, and 9 months’ imprisonment as that for Charge 8.

54.  On the mitigation side, D18 has pleaded guilty.  A defendant who has pleaded guilty in good time is usually given one-third discount of his sentence. It is arguable that D18 should not be given this usual one-third discount in light of the fact that he has absconded and is wasting the public resources to be spent in tracking him down and bringing him to justice. 

55.  I have however decided not to do so because when D18 is subsequently apprehended, it is most likely that he will be charged with a bail offence and punished upon conviction.  I want to avoid any argument to be raised that he should receive no or lesser punishment for his bail offence because he has already been penalized in these proceedings when the discount of his sentence stemming from his guilty plea has been reduced.  On the basis of D18’s guilty plea, his sentences on Charges 5 and 8 are reduced to imprisonment for 8 months and 6 months respectively.

56.  There is a substantial delay in the prosecution.  For this reason, the sentence for Charge 5 is reduced to 6 months’ imprisonment, and that for Charge 8 is reduced to 5 months’ imprisonment.

57.  D18 was sentenced on 27 September 2023 to an effective total term of 5 months’ imprisonment for 4 offences in 3 cases, and these offences were committed by D18 during the same police undercover operation as in the present case. I have not lost sight of the possibility that if D18 were charged with all the cases arising out of the same police undercover operation at the same time, D18 might benefit from the totality principle and receive a lesser sentence for the present case, taking into account the fact that he had served 5 months’ imprisonment for the other cases.

58.  However, having considered the matter carefully, I decline to reduce the sentences to be imposed now on D18 on this ground.  It is because, in my view, D18 was given very lenient sentences in these 3 cases.  For 4 offences, including one charge of conspiracy to commit criminal damage and two charges of acting as members of a triad society, he had served 5 months’ imprisonment only.  The law is clear. The totality principle does not mean that the more offences a defendant has committed, the sentence to be imposed on him for each offence has to be reduced.  The totality principle insists that a defendant should not stay in prison for an unduly lengthy term that might jeopardize his chance of rehabilitation and reintegration into the society, but it also requires the overall sentence to reflect adequately the overall criminalities of the offences committed by him. I am of the view that the sentences to be imposed on D18 in this case should not be reduced because he had served 5 months’ imprisonment for those 3 cases.

59.  In my judgment, there is no other factor that may reduce the sentences to be imposed on D18 any further.

60.  For these reasons, D18 is sentenced to 6 months’ imprisonment for Charge 5, and 5 months’ imprisonment for Charge 8.

61.  I shall now consider whether these two sentences should run wholly or partially concurrently or consecutively.  I have to determine according to the totality principle.  While the two offences were committed by D18 on different dates, part of the sentences can run concurrently because D18 committed these offences because of the same triad connection.  In other words, part of the criminalities of these two offences had overlapped.

62.  I am of the view that the starting point of the overall sentence to be imposed on D18 is 15 months’ imprisonment.  Upon his guilty plea, the sentence is reduced to 10 months.  Another two months will be deducted to reflect the substantial delay in prosecution.  For these reasons, I find that the appropriate overall sentence to be imposed on D18 is 8 months’ imprisonment.

63.  To achieve this result, it is ordered that 2 months of the sentence of Charge 8 is to run consecutively to the sentence of Charge 5, making an effective total term of 8 months’ imprisonment.