HKSAR v. CHEUNG YUK NAM AND OTHERS

DCCC876/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 876 OF 2010

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  D1, you pleaded guilty and you, D2 and D3, were convicted after trial of two offences of wounding with intent, contrary to section 17(a) of the Offences Against the Person Act, Cap. 212, and one offence of wounding, contrary to section 19 of that same ordinance and to one offence of assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of that same ordinance.

2.  D1, you admitted the brief facts and you, D2 and D3, as I have said, I convicted you after trial on the clearest of evidence. The facts as they relate to you, D2 and D3, were dealt with at length in my verdict delivered on the last occasion. The facts are well known to you, D1, but I will deal with them briefly for the record.

3.  PW’s 4 and 5 had been bullied by others in the Shek Lei Estate. At about 10 pm on 2 October they had dinner at the Yiu Kee Restaurant with PW’s 1, 2, 3, 7 and 8. PW1 asked them to locate the alleged bullies and invite them for settlement talks. Whilst I acknowledge their evidence is somewhat different, the facts say that they went off and returned with two males and then there was a dispute. The two males left and then PW1 and his party returned to their dinner. About 15 minutes later, a group of 15 people arrived including D1, D2 and D3. Again, that is somewhat different from what the evidence established. An unknown male slapped PW1’s face and the others attacked him with fists, kicks, glass bottles and wooden stools. PW2 and PW4 were hit by glass bottles, that is by D2’s group, and also by fists and kicks. PW3’s face and body were assaulted. These party then fled.

4.  The following injuries were occasioned by the victims:-

PW1 was found to have multiple laceration wounds over his forehead, swelling on his left side of his face, abrasions over his right leg and multiple scratch marks over his anterior chest wall and bilateral legs.

PW2 was found to have abrasions and tenderness over his left cheek, a 2-centimetre laceration wound was noted to his right thumb. His lunar digital nerve was cut. The flexor tendon of his right thumb was found to be completely ruptured.

PW3 was found to have 3-centimetre swelling over his scalp, 1‑centimetre superficial laceration of his right index finger and mild tenderness over both.

PW4 had abrasions over his left forehead and palms.

5.  D1, you admitted to four previous convictions, three of which were similar; D2, to seven previous convictions on five occasions, one of which was similar. You are at the moment serving a sentence of 42 months’ imprisonment and will not be released until July of 2012. D3, you have three previous convictions on three occasions, one of which is similar.

6.  In each case, I adjourned for the preparation of Probation officer’s background report and a Training Centre report. In your case, D2, this was an oversight on my part, I had failed to notice that you were serving a sentence of imprisonment. Clearly this renders Training Centre totally inappropriate.

7.  In respect of D1 and D3, it was suggested that Training Centre was an appropriate sentence, however your counsel in each case submitted that this was not appropriate as you had spent time on remand which would be lost if a Training Centre period was imposed and in any event given the nature of the charges it was not appropriate. Having considered the position fully, I agree with that.

8.  Mr Chau entered mitigation in respect of you, D1. You are aged 18. Your background and domestic circumstances are dealt with fully in the Probation officer’s report and very sensibly Mr Chau did not feel the need to repeat those, those are understood by me and have been read by me. He submitted to me that you had been co-operative throughout and of course you have pleaded guilty and you were remorseful. I understand it is your intention to take a driving course in order to be gainfully employed on release. He invited me to take the view that this was a course of conduct rather than four separate offences. That approach is the correct approach in my opinion and commends itself to me.

9.  Mr Luk similarly on your behalf, D2, entered mitigation. You are 20 years of age and again your background and domestic circumstances are comprehensively dealt with in the Probation officer’s background report. He submitted that the victims’ injuries had not been of the worst, that PW1 had started the matter by assaulting you and claiming to be a member of a triad society. He asked me to apply the principle of totality, in other words take into account the present sentence you are serving.

10.  Mr Ching, on your behalf, D3, also entered mitigation. You are 17 years of age. Again your background and domestic circumstances are dealt with fully in the Probation officer’s report. He submitted to me that you are not the mastermind. You had taken part by the throwing of glass bottles. He said that you had spent time on remand but part of the time had been spent serving a DATC order. Once again he urged me not to impose a Training Centre order.

11.  I turn now to the sentences. This was a serious gang attack on another group with the clear intention of causing actual or serious bodily harm. Having said that, there are some points of mitigation. This was certainly not the worst attack of its kind. It was clear from the evidence that PW1, who was in a state of intoxication, was the first to offer violence and he was the one who claimed to be a member of a triad society. To my mind it is a major point of mitigation that none of your group came armed to the scene. Commonly in these sort of incidents the attackers come armed with baseball bats, choppers or knives. The weapons that were used were ones simply found to hand in the restaurant though no one would underestimate the effect that hitting and throwing glass bottles can cause and hitting with stools. While certainly not trivialising the injuries, they were not of the worst although it seems to me that this was purely fortuitous. I note also that numerically the two gangs were fairly evenly matched. This is of limited mitigation, however it takes it out of the category where a numerically superior gang attacks one or two people leaving them badly injured.

12.  I turn now the individual sentences. D1, you were co‑operative, I accept that, and have pleaded guilty. The plea of guilty is a profound expression of remorse. You are only 18 years of age, however you do have three previous offences of violence. As I have indicated, I intend to treat this as a course of conduct rather than four individual offences, that is the correct approach in my opinion. The mitigation that I have mentioned applies equally to all of you. In this case I take a starting point of 30 months’ imprisonment reduced to 20. That will be served in the following way:-

Charges 1 and 2: I take starting points of 30 months reduced to 20 months;

Charge 3, 18 months to 12 months;

Charge 4, 15 months to 10 months.

These will be served concurrently making an overall total of 20 months’ imprisonment.

13.  D2, you are 20 years of age. You have seven previous convictions, one related to violence. I note that you are serving a period of imprisonment. The sentences that will be imposed are these:-

That on the 1st and 2nd charge you will go to prison for 30 months on each;

on the 3rd charge, 18 months’ imprisonment;

on the 4th charge, 15 months’ imprisonment.

These will be served concurrently making a total of 30 months’ imprisonment.

14.  I turn now to the principle of totality. It is a well-established principle that a person should not be given sentences which are totally crushing, even more so when that person is young he or she must be in a situation where they can see an end of their sentence and hope for the future. Therefore in your case, you will serve 15 months concurrently and 15 months consecutively to your existing sentence.

15.  D3, Mr Ching has submitted that you were not one of the ringleaders but yet you were a full and active participant in this attack, you acted in concert with the others and I can see no reason to differentiate. The throwing of bottles was clearly intended to cause injury and in my opinion did cause injury. You are 17 years of age, you have three previous convictions, one of which resulted in you going to DATC and one of which is similar.

16.  On charges 1 and 2, you will go to prison for 30 months on each; charge 3, 18 months and charge 4, 15 months. They will be served concurrently, a total of 30 months’ imprisonment.

17.  And finally I would like to thank counsel for their assistance in this case throughout.