HKSAR v. KWAN MING HANG AND OTHERS

DCCC 140/2021

[2022] HKDC 602

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 140 OF 2021

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REASONS FOR SENTENCE

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1.  D1, D2, D4 and D5 together face a Charge Sheet consisting of two charges before me.

2.  Charge 1 against all of them is Affray, contrary to Common Law and punishable under section 101I(1)  of the Criminal Procedure Ordinance, Cap 221. Particulars are that all four of them, together with Wong Chi Shing (previously D3), on 4 July 2016, outside Ground Floor, Block 10, Shek Lei (II)  Estate, Kwai Chung, New Territories, in Hong Kong, unlawfully fought and made an affray.

3.  Charge 2 against D2 only is Failing to surrender to custody without reasonable cause, contrary to section 9L(1)  and (3)  of the Criminal Procedure Ordinance, Cap 221.  Particulars are that D2, on 29 June 2021, in Hong Kong, being a person admitted to bail, without reasonable cause, failed to surrender to custody as had been appointed by a court.

4.  D1, D2, D4 and D5 pleaded guilty to Charge 1.

5.  D2 pleaded guilty to Charge 2.

Facts admitted by D1, D2, D4 and D5

Charge 1 – Affray against all defendants

6.  On 4 July 2016, at 8:35 pm, an off-duty police constable parked his motorcycle outside Ground Floor of a residential building in Shek Lei (II)  Estate (“Offence Location”).  He saw two groups, about 15 people in total, suddenly running towards each other.  Some of them held metal batons and knives.  Someone shouted, “Hit them!”.  The two groups fought for about 2 minutes before fleeing.

7.  Later, D1, D2, D4, D5 and Wong Chi Shing (previously D3)  were arrested.

8.  Under caution, D1 admitted:-

(a)  During an earlier incident at about 3 pm on the day of the said fighting, he saw someone slap his friend D5 in the face several times;

(b)  Later that day, he was instructed to get into a van with several people already on board; they later alighted at the Offence Location;

(c)  He himself did not carry a knife but others did; as a group, they attacked another group of persons;

(d)  During the fight, he kicked an unknown person twice; and

(e)  He did not want to attack anyone but he was afraid of being accused by his peers if he did not do so.

9.  Under caution, D2 admitted:-

(a)  He saw a person slap D5’s face during an earlier incident on the day of the said fighting;

(b)  He was aware that his group of peers intended to have a confrontation about this; and

(c)  Later that evening, he and his group of peers went to the Offence Location where, at one point, he and D1 together hit an unknown person with their fists.

10.  Under caution, D4 admitted:-

(a)  He saw D5 being slapped in the face during an earlier incident on the day of the said fighting;

(b)  Afterwards, he and his group decided to confront an opposing group of persons about this face-slap incident;

(c)  He was instructed to wear a surgical mask and was given a beef knife;

(d)  He was present when the fighting began at the Offence Location but he did not attack anyone; and

(e)  After the fight, he changed his clothing.

11.  Under caution, D5 admitted:-

(a)  In the afternoon of the day of the said fighting, he was chatting with a friend when a person suddenly approached him and slapped his face twice;

(b)  Afterwards, he and his group intended to go meet the opposing group in the evening to talk about his face-slapping incident;

(c)  He overheard that some in his group had knives but he himself did not carry or see any;

(d)  During the fight, he saw two members of his group suddenly rush out and attack with knives;

(e)  He himself was hit during the fight but he did not assault anyone; and

(f)  Afterwards, his group re-convened somewhere in Tsuen Wan and were each given $100 to take a taxi and leave the area.

12.  D1, D2, D4, D5, together with Wong Chi Shing, unlawfully fought and made an affray at the Offence Location (Charge 1).

Charge 2 – Failing to surrender to custody against D2 only

13.  On 20 May 2021, D2 attended his hearing at the District Court.  The court adjourned the case to 29 June 2021, and extended D2’s bail until that date.

14.  On 29 June 2021, D2 did not turn up.  The court issued a warrant of arrest against D2.

15.  On 7 November 2021, at about 5:05 pm, police intercepted D2 on the streets in Tsuen Wan.  He was arrested.

16.  In the whole of 2021 up till 7 November 2021, D2 had not been admitted to any public hospitals.

17.  Being a person admitted to bail and without reasonable cause, D2 failed to surrender to custody as had been appointed by a court (Charge 2).

Criminal records

18.  D1 has a clear record.

19.  D2 has one dissimilar conviction for which he was sentenced in 2021 to 4 months’ imprisonment suspended for 2 years and a fine.

20.  D4 has a clear record.

21.  D5 has one previous dissimilar conviction in 2018 for which he was sent to detention centre.

Antecedents

22.  D1 is aged 22 (16 at the time of the offence), educated to F3 level, a hairstylist.  He lives in public housing in Kwai Chung.

23.  D2 is aged 19 (13-18 at the time of the offences), educated to F3 level, unemployed.  He lived in private housing in Tsuen Wan.

24.  D4 is aged 23 (17 at the time of the offence), educated to F3 level, a part-time transportation worker.  He lives in public housing in Kwai Chung.

25.  D5 is aged 20 (14 at the time of the offence), educated to F4 level, a warehouse worker.  He lives in public housing in Kwai Chung.

CSO reports of all defendants and Background report of D2 only

D1

26.  The following are extracts from D1’s CSO report:-

(a)  “It is believed that the Accused has learned a lesson from this case. As witnessed by the mother, the Accused cut the nocturnal life and hanged out at night no more. Besides, the Accused made great effort in maintaining a stable employment and his job performance earned a praise from the present employer. The Accused also provided substantial and stable financial support to his mother and spent time with her. Those positive changes improved the Accused’s relationship with his family significantly.”: para 13;

(b)  “The Accused apparently made a great effort in building up a normal life and worked hard in his jobs after the happening of this case.”: para 15; and

(c)  “… the Accused is considered a suitable person for CSO … Hence, CSO is recommended for the Accused.”: para 16.

D2

27.  The following are extracts from D2’s CSO report cum Background report:-

“He exhibited misbehavior and mixed with the undesirable peers at the age of 14. He started to transgress the law and had drug abuse habit after mixing with the undesirable peers with triad background… He committed several offences since 2016 and he did not seem to have gained any insight in his misbehavior. Moreover, he failed to attend court hearing for the present offence as scheduled and attempted to hide up. He did not have the intention to take up the legal responsibility for his wrongdoings… In view of the Accused’s strong ties with the undesirable peers, weak law abiding concept, drug abuse history… the Accused is not suitable for performing the unpaid work under Community Service Order (CSO). Thus, CSO is not recommended for this case.”: para 11.

D4

28.  The following are extracts from D4’s CSO report:-

“At his teens, he obviously had mingled with undesirable peers which eventually got himself involved in the index offence. Fortunately, he could make a turn which made the related commission his first and only brush with the law. The Accused has settled as a family man taking good care of his two toddlers. Nevertheless, he still need (sic)  to pay the cost for his previous wrong-doings. In view of his insight gained, his ready plea and expressed remorsefulness, commitment in performing unpaid work under CSO, availability for community service, no known contraindicating physical or mental problem and with the support from his family, the Accused is considered a suitable person for CSO. Hence, CSO is recommended…”: para 10.

D5

29.  “The Accused was locally born to a simple single-parent family.  Though he was not academically good, he manifested no grave behavioral problems.  He has obviously turned wayward under adverse influence of dubious peers and inadequate parental supervision, leading to his involvement in the offences related to gang fight and dangerous drugs.  As mentioned, his commission of the index offence was attributable to his simple-mindedness with weak law-abiding sense and failing to realize the seriousness of his acts.  Having received custodial sentence for his previous offence in 2018, the Accused seems to have learnt a lesson.  With some insight gained, his verbal promises to lead a regulated living with stable employment and acquisition of work skills, and his commitment in performing unpaid work, it may be worth giving him a chance to reform in the community by performing Community Service Order.  Hence, CSO is recommended…”: para 12.

Mitigation

D1

30.  Ms Rachael Siu of counsel assigned by the Director of Legal Aid mitigated on behalf of D1.  The following is a summary of the mitigation submissions.

31.  D1’s father passed away in 2014 when D1 was only 14.  D1 started to have behavior problems thereafter (school reports submitted).  D1 made acquaintance with undesirable peers and committed the offence in 2016.

32.  D1’s mother has chronic hepatitis B and is generally of poor health (medical report dated 25 March 2022 submitted).

33.  In 2019, D1 successfully secured a job as an apprentice with a subcontractor of CLP Power Hong Kong Limited.  He performed well and has been having a stable job since then.  D1’s supervisor has stated that since October 2019, D1 has performed well, been punctual, has been willing to listen and learn and has demonstrated a good character.

34.  During the commission of the offence, D1 was part of two opposing groups of teenagers who fought each other over a minor slapping incident.  D1 did not carry any weapons and he only participated because he was afraid of being accused by his peers of being disloyal.  During the 2-minute fight, he kicked a person twice and did not cause any injury.

35.  There are no sentencing guidelines for the offence of affray.  The previous D3 in the same case was sentenced on 17 November 2021 to 180 hours of community service: HKSAR v Wong Chi Shing (D3)  [2021] HKDC 1455.

36.  It was submitted that D1 has stronger mitigating factors than D3 in that (a)  he is younger than D3; (b)  he has a clear record; (c)  he is in stable employment and was held with high regards by his supervisor.

37.  It was submitted there was undue delay by the prosecution in the present case.  The point was dealt with by Judge G Lam in his Reasons for Sentence of D3.

38.  It was submitted that D1 has reformed since July 2016, has maintained a stable employment, and had not got himself into trouble again.  He has the full support of his family, his social worker and his supervisor.  It was submitted that sentencing D1 to imprisonment now would not only declare his effort in reforming himself in the past 6 years futile but would also be devastating to him and his family.

39.  The point was also made that the sole evidence against D1 came from his own admissions.  However, when told that D1 was arrested at the scene, Ms Siu retracted somewhat from her earlier position.

40.  The court is urged to obtain reports, in particular a CSO report, prior to sentencing.

41.  Ms Siu submitted a total of 8 mitigation letters all written in Chinese by various parties including D1 himself and his work supervisor.  In particular, the latter has written that D1 on obtaining the relevant technical qualification is due to be promoted to a higher position in June 2022.

42.  Ms Siu asked the court to adopt the recommendation of the CSO report.

D2

43.  Mr Bruce Tse of counsel assigned by the Director of Legal Aid mitigated on behalf of D2.  The following is a summary of the mitigation submissions.

44.  Before being placed into remanded custody, D2 lived with his divorced mother and 2 younger sisters (both students)  in Tsuen Wan.  The mother is on CSSA.  There is also an elder sister who is married and lives away.

45.  D2’s last job was as a casual warehouse worker between July and December 2020; during that time he earned about $8,000 a month.

46.  In respect of Charge 1, he was 13 at the time and was foolish to have committed the offence under peer pressure.  He knew there might be a fight but did not expect weapons to be used.

47.  In respect of Charge 2, he was unwell on the material day, and subsequently he was too scared to face the consequences.  On 7 November 2021 (just more than 4 months later), he was arrested by the police upon random identity check.

48.  Wong Chi Shing ie previous D3 was sentenced by another judge earlier to 180 hours of CSO upon a plea of guilty (Reasons for Sentence dated 17 November 2021 refers).

49.  It is submitted there are common mitigating factors between D2 and the previous D3: it took the prosecution 3.5 years to obtain legal advice and it took 4.5 years from initial arrests to bringing them to court.  It is submitted that the delays are unreasonable and unjustifiable.

50.  The only evidence against D2 and D3 are from their respective admissions.  D2 was only 13 when he attended all the cautioned interviews.

51.  D2 has been under remanded custody for slightly less than 6 months which should be sufficient penalty for him.

52.  Mr Tse also referred to the case of HKSAR v Lam Lung Wai, HCMA 680/2012 (Chinese judgment).

53.  Mr Tse asked the court to call for a CSO report before sentence.

54.  Mr Tse submitted 2 mitigation letters written in Chinese respectively by D2 himself and by a social worker.  The contents are generally that after more than half a year’s remanded custody, D2 has decided to distance himself from his undesirable friends; that he has undertaken some volunteer work; that a chance is asked for so that he may reform himself.

55.  During the so called undue delay period, D2 had limited rehabilitation in that he had worked for about 6 months [when he was about 18 years old] before he was convicted of a possession of dangerous drug offence.

56.  Mr Tse asked the court to impose a CSO on D2 despite the fact that it was not recommended in the report, for the reason that all the other defendants are likely to be sentenced for CSO.

D4

57.  Mr Fu Chong Sang of counsel assigned by the Director of Legal Aid mitigated on behalf of D4.  The following is a summary of the mitigation submissions.

58.  D4 is not married but he has one son (2)  and one daughter (1).  D4’s mother passed away in 2000.  D4 has one elder brother (25).

59.  D4 works as a car tyre repairer, earning about $12,000 per month.

60.  D4 was arrested on the day after the offence date and cautioned with full admission made.  Bail was granted by the police.  Police returned bail money to D4 in April 2020 (prosecution says March).  Re-arrest took place on 5 January 2021 with cash bail of $500.  First appearance in District Court was on 22 April 2021.

61.  D4’s timely plea demonstrated remorse for what he had done in 2016.

62.  D4 planned to marry his fiancée prior to realizing she was pregnant 2-3 years ago.  However, both of them were worried about how D4’s possible imprisonment might have affected their ability to raise up the kids and so delayed their marriage plans.

63.  The court is asked to take into consideration the fact that this case has been hanging over D4’s head for about 6 years.  During this period, D4 has rehabilitated himself by learning a trade that he can rely on to support a family of four.

64.  The court is asked to impose a non-immediate custodial sentence.

65.  Mr Fu has submitted a total of 7 authorities; however, he has not gone into any particular passages in the majority of them.

66.  Mr Fu submitted 5 mitigation letters written in Chinese (with English translation)  by respectively D4 himself, his fiancée, his grandmother, his employer and a social worker.  The contents are generally that D4 committed the offence through ignorance and being misled by peers; that he is now a father of 2 and has a stable job and has reformed himself; that he is a responsible father; that he is a major economic pillar; and that he has done some volunteer work; that a lenient sentence is asked for.

67.  Mr Fu asked the court to adopt the recommendation in the CSO report.

D5

68.  Ms Liza Yip of counsel assigned by the Director of Legal Aid mitigated on behalf of D5.  The following is a summary of the mitigation submissions.

69.  D5 grew up in a single parent family.  He was only a F2 student when he committed the offence.  He is single and lives with his mother.  He has an elder sister (21)  living away from home.  He was released from detention centre in May 2019 for his one conviction recorded in 2018.  After his release, he started working as a part-time waiter for a short while.  In September 2019, he returned to school and finished F4 in July 2020.  From September 2020 to December 2021, he worked as a warehouse worker.  Due to the Covid pandemic, he was forced to stop work for about 2 months until February 2022 when he found a job as a transportation worker.  After one month, he quitted that job to become an air-conditioning apprentice but that did not last long either, again due to the pandemic.  From April 2022 till present, he has been working as a warehouse worker again, earning $9,673 per month.

70.  D5 is genuinely remorseful.  At the time of the offence, D5 was of clear record.  He was 16 when he was sentenced to detention centre.  He committed that offence due to the influence and manipulation of bad peers.

71.  D5 committed the present offence purely because of his young age, influence of bad peers, momentary stupidity and without stopping to properly consider the severity of the consequences of his actions.

72.  D5 has been gainfully employed and totally disassociated himself from bad peers.

73.  D5 being slapped was the excuse manipulated by other older youngsters for a fight between the groups but D5 was not the instigator of either the talk or the fight.

74.  The young man (one CP Wong)  who had slapped D5, pleaded guilty to common assault of D5 and was fined $3,000.

75.  There is undue delay in the prosecution of the present case.  D5 was first arrested on 5 July 2016; he was not charged until 5 January 2021, some 4.5 years later (see HKSAR v Wong Chi Shing (D3), DCCC 140/2021, in particular the Chronology of Events set out in paras 8 to 11 thereof).

76.  The court is urged to give D5 a chance to turn over a new leaf.

77.  Ms Yip submitted two mitigation letters written in Chinese by respectively D5 himself and a social worker.  The contents are generally that D5 had been in odd jobs for about 2 years cumulatively; that he had previously been in custody and so knows how hard it feels; that he deeply regrets what he had done and promises to reform himself; that he was ignorant and young at the time of the offence; that the matter has been hanging over his head for many years; that D5 had been a warehouse worker for about one and a half year and the employment was only cut short because of the pandemic; that he had often had talks with social worker about his future; that he had done volunteer work; that he had cut off his ties with undesirable peers; that a lenient sentence is asked for so he may turn over a new leaf.

78.  Ms Yip asked the court to adopt the recommendation in the CSO report.

Sentence

79.  I have read all the mitigation letters.

80.  I have received an updated though still undated and unsigned “Chronology of Legal Advice Progress icw DCCC 140/2021” as an enclosure to prosecution’s letter dated 2 June 2022 under the hand of the fiat counsel who attended the last hearing on 31 May 2022.  Regrettably, it is still incomplete in that it failed to cover the dates on which D1, D2, and D4 were first released from police bail.

81.  Affray is a serious offence carrying with it a maximum sentence of 7 years’ imprisonment. 

82.  Moreover, it is an excepted offence for which there cannot be imposed a suspended sentence; nor does section 109A of Cap 221 apply.

83.  Failure to surrender to custody carries with it a maximum sentence of 12 months’ imprisonment.

84.  All defendants pleaded guilty to their respective charges in good time.

85.  I am satisfied that there has been undue delay in prosecution in this case.  The details of it can be found in D3’s Reasons for Sentence delivered by HH Judge G Lam on 17 November 2021 under the same case number.

86.  I am also satisfied during this period of delay, D1, D4 and D5[1] have taken steps to rehabilitate themselves.

87.  The CSO reports of D1, D4 and D5 contained positive recommendation.

88.  For all of these reasons, I am prepared to deal with D1, D4 and D5 by way of CSO.

89.  The CSO cum Background reports of D2 contained a negative recommendation.  I am not prepared to deal with D2 by way of CSO.

90.  Although Affray is an excepted offence, “failing to surrender to custody” is not.  D2 is aged 19.  Section 109A of Cap 221 applies to D2 in respect of Charge 2.  I have taken into account the information made available to me through mitigation and from the CSO cum Background reports.  I bear in mind that D2 has to be sentenced both for Charge 1 and for Charge 2; that different types of sentence on the two charges have the potential of being wrong in principle.

91.  Bearing also in mind D2 already carries a live suspended sentence imposed post the two offences in this case (for which I have no intention of activating), I conclude that an immediate term of imprisonment is the only sentencing option for D2.

92.  For Charge 1, having considered that the Affray lasted only about 2 minutes, that D2 was only 13 at the time, and having regard to the fact that the undue delay (though with D2’s limited rehabilitation during that period)  made what would have been a simple matter of sentencing a juvenile into what it is today, I will adopt a low starting point of 9 months’ imprisonment.

93.  For Charge 2, I will adopt a starting point of 6 months’ imprisonment.

94.  D2’s early pleas have earned him 1/3 discount in respect of both Charges 1 and 2.  There are no other worthy mitigating factors to justify any further reduction.  In principle, the sentence on Charge 2 ought to be served wholly consecutively to that on Charge 1; but I will consider totality before imposing the final sentence.

95.  Against each of D1, D4, and D5, I am minded to impose a Community Service Order of 180 work hours.

[I then explained to D1, D4 and D5 in ordinary language the purpose and effect of the Order, the consequences of failure to comply with the requisite conditions and requirements, the consequences of re-offence, and finally the court’s power to review the Order. D1, D4 & D5 each indicates his consent to the making of a CSO]

96.  I am satisfied of the following:-

(a)  D1, D4 and D5 consent to the making of such an order;

(b)  They are each a suitable person to perform work under such an order; and

(c)  Provision can be made for each of them to perform work under such an order.

(All defendants, please stand)

97.  Against each of D1, D4 and D5, I impose a Community Service Order of 180 work hours as sentence for Charge 1.

98.  Against D2, on Charge 1, I impose a term of 6 months’ imprisonment sentence.

99.  Against D2 on Charge 2, I impose a term of 4 months’ imprisonment sentence.

100.  I order that 3 months of the sentence on Charge 2 do run consecutively to the sentence on Charge 1, making an aggregate sentence of 9 months’ imprisonment.