HKSAR v. WONG WO FAT

DCCC 739/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 739 OF 2014

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Reasons for Sentence
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1.  Upon plea bargaining, the prosecution amended the charge sheet by inserting two alternative charges to the 1st count of robbery. At the end of the day, all five defendants pleaded not guilty to charge 1. All defendants pleaded guilty to the alternative charge of AOABH (Charge 2). D1 and D5 also pleaded guilty to another alternative charge of theft (Charge 3). D1, D2, D3 and D5 pleaded guilty to the offence of blackmail (Charge 4). They were convicted of the various charges to which they pleaded guilty, and the remaining charges are all left on court file.

2.  For sentencing purposes, as regards D5, I called for Training Centre, Detention Centre, Rehabilitation Centre, CSO and PO reports.

3.  At the request of this court, a consolidated Summary of Facts for all defendants was tendered for sentencing purpose.  On the last occasion, counsel for D5 made complaints relating to two areas of the Detention Centre report, namely the medical history of D5 and his triad links, if any.  I adjourned D5’s sentence to today, 17 February at 2:30 pm, and called for another Detention Centre, TC and RC reports to be compiled by another officer. 

4.  I have sentenced D1 to D4 on 4 February.  A fresh background report compiled by Officer Chan and an explanation from Officer Liu dated 6 February 2015 were submitted.  For the purpose of the present sentencing proceedings, I have to reiterate the Summary of Facts relating to D5.

Brief facts

5.  D2, Sze and Mr X are cousins.  After finishing his university education in Australia, X returned to Hong Kong.  In or about March 2014, X learnt through Facebook that D2 was unhappy because she had broken up with her boyfriend.  X got in touch with D2 to cheer her up. 

6.  On 20 May 2014, D2 told D1 that X had had sex with her several times.  D2 was told to call X and asked X to come to the podium so that X would be beaten up and taught a lesson.  D1 called some of his friends to provide assistance.  In the evening on the same day, D2 told X over the phone that she was drunk and was at the podium on the 4th Floor of Fu Cheong Estate, Sham Shui Po (“the podium”).  D2 asked X to pick her up there and take her home. 

7.  Upon arriving at the said podium, X saw D2 sitting on a staircase together with two other girls.  When X was approaching them, the two girls walked away.  X could not smell any alcohol on D2 who asked X to stay longer for a chat.  After a few minutes, D1 and D3 appeared.  D2, who appeared to be sober by then, said to D1 “I have finished acting, brother” and then walked aside.  D3 was not close by when D2 spoke.  D1 then confronted X and asked him if he had sex with D2.  X denied.

8.  In the presence of D2, D1 and D3 kept on accusing X of having sex with D2.  Later, D4 and D5 arrived.  D1 asked X to suggest a way to resolve the matter but X could not.  D1, D4 and D5 then started to assault X by punching and kicking X’s body for about 2 minutes.  X fell onto the ground, feeling severe pain on his head, back, chest and right arm.  D3 was present and only lent his weight to the assault but did not land any blows on X.  D2 was present throughout.  D1 then asked X if he had got any money with him.  D1 then took X’s wallet and stole $400.

9.  D1 further demanded X to give him $10,000 before midnight that day to resolve the matter.  D1 hinted that he had triad connections.  He also threatened to cause trouble to X and his family if X did not pay up the sum.  D1 threatened X not to report to the Police.  D4 was in the vicinity but was not involved in D1’s demand. 

10.  X was scared and told D1 that he could not get the money that night.  D1 then demanded X to pay $14,000 on the following day and threatened X again.  D1 said the sum of $14,000 was to be shared out by seven in equal share, including the two girls who had been chatting with D2 at first.  The whole group, including X, left the podium.  X and D1 used the same lift while others used either another lift or staircase.  CCTV in the lifts captured the parties leaving.

11.  X reported the matter to the Police.  Upon Police arrangement, X called D2 who asked X to give her the money in Fu Shin Estate, Tai Po, at 6 pm that day. 

12.  At around 6:05 pm, X arrived at a restaurant in Fu Shin Estate.  X informed the defendant.  At about 6:20 pm, D1 and D2 appeared outside the restaurant.  D2 called X and asked X to come outside but X refused.  D1 and D2 refused to enter the restaurant.  Eventually, X identified D1 and D2 to the Police officers who eventually arrested them.  Under caution, D2 said “Sorry, I should not have got someone to rob my cousin or blackmail my cousin”.

13.  When the party was leaving the scene, X spotted D3 near a bus stop.  X pointed D3 out to the Police.  D3 was arrested.  D4 and D5 were eventually arrested on 22 May 2014. 

14.  In the video-recorded interview, D5 made the following admissions:-

D5 admitted that he attacked X, took part in taking money from X and also blackmailed X. D1 called D5 to meet D1 at the podium. At first, X fought with D4 as arranged by D1. Later D5 and others joined in and started to assault X with fists and kicks for a while. X tried to ward off the attack. D5 hit X on his back and abdomen. D1 took $400 from X’s wallet and they spent the money on a meal. To resolve the matter, D1 told X that X had to pay $2,000 to each of them, making a total of $14,000. D1 allowed X to have time to raise the money by 6 pm on the following day. It was agreed amongst the defendants that D1, D2 and D3 should collect the settlement money from X. X was further warned that he should not report the matter to the Police. D5 admitted that he was wrong, saying that “I should not have gone robbing and wounding that person”.

Identification parade

15.  X identified D4 and D5 as the persons who attacked him on the podium.

Medical examination of X

16.  X received medical attention on 20 May 2014.  X was found to have suffered from tenderness at right ribs and mild bruising on his back, mild redness over the nose and mild abrasions at right forearm.  X was discharged and granted three days of sick leave. 

Mitigation

17.  D5 is now aged 17 and had a clear record.  He pleaded guilty to the charges at the earliest opportunity and gave a NPS to the Police.  The prosecution intended to call D5 as one of the prosecution witnesses.  D5 wants to apologise to the victim for what D5 had done.  D5 admitted that he hit the back and abdomen of the victim.  He shared the stolen proceeds of $400 in a meal with others.  D5 was not the mastermind of the offences.  There was no weapon used and the injuries suffered by the victim were not serious.  It was submitted that the incident was a one-off event which was out of character of D5.  All these factors made D5’s case a bit different from that of the other defendants.  Because two reports were called for on different occasions, D5 has been in remand for five weeks.  D5 is also willing to pay compensation to the victim.

18.  D5 has a supportive family and apart from his family members, an officer from YMCA also attended court to show her support. Defence also tendered the mitigation letters from D5, Ms Tsang, the supervisor from Chinese YMCA, and one Mr Yeung who was the manager of D5’s previous employer company.  It is urged that this court should consider D5’s remorsefulness and give D5 a lenient sentence.  On the last occasion, defence also tendered four cases relating to D5.

Sentence

19.  D5 is aged 17 and pleaded guilty to the alternative charge of AOABH (Charge 2), that of theft (Charge 3) and also the offence of blackmail (Charge 4).  He was the only defendant who indicated his pleas when he first appeared in District Court in September 2014.  He was willing to cooperate with the authority which resulted in providing an NPS to the Police.  Originally the Police intended to call D5 as one of the prosecution witnesses.  These factors are all to D5’s credit.

20.  D5 had a clear record and pleaded to this court for a chance of open supervision.  The Probation officer took the view that D5 just wanted to get an easy way to settle his present case rather than evaluate his needs to achieve total reform in society.  It was said open supervision is believed to be ineffective in rehabilitating D5 who is in need of a more constrained and disciplinary setting to reform D5 and to learn to lead a law-abiding life.  As such, both a Probation order and CSO are not recommended.  On the other hand, the CSD officer’s report took the view that in order to help D5 develop more insight into his problems and cultivate his positive moral value and his law-abiding concept, a short period of disciplinary training coupled with statutory supervision is beneficial to D5. A Detention order was recommended.

21.  The fresh report by officer Chan also mentioned that D5 is well loved and maintains a harmonious relationship with family members.  He associated with triad elements in early 2014.  The officer was of the opinion that “in order to help D5 develop more insight into his problems and cultivate his positive moral value as well as strengthen his law-abiding concept, a short period of disciplinary training coupled with statutory supervision might sound beneficial to him”.  Again a Detention order is recommended.

22.  I find it not an easy task to sentence D5 in the present case.  D5 was the first one to indicate his pleas and the one who might be instrumental to the pleas entered by other defendants.  On the other hand, a sentencer has to balance between the principle of deterrence and rehabilitation.  As said by the Court of Final Appeal in Wong Chun-cheong v HKSAR (2001) 4 HKCFAR 12:-

“Judges have frequently found it less than easy to decide how the competing and often conflicting demands of proportionate punishment on the one hand and reform on the other can be reconciled in a particular case.”

It is not easy to find a just and appropriate sentence which can reflect the gravity of the offence committed and the moral blameworthiness of the offender (see Sentencing in Hong Kong 2011, 6th Edition at page 80).

23.  In his mitigation letter, D5 said all he wanted is a chance to be a good son who will take care of his family, a chance to rehabilitate himself for the sake of his future and family.  He admitted his wrongdoing and is remorseful.  Ms Tsang of the Chinese YMCA endorsed what was said by Ms Tang, the registered Social Worker who counselled D5.  Ms Tang was of the view that D5 has the ability to control his personal behaviour.  D5 promised that he will be a law-abiding citizen and will sever links with those bad peers.  D5 also vows that he will live in a stable and regular life. 

24.  D5’s previous employer confirmed that D5 was a hardworking staff working in the salon for almost one year.  D5 admitted his wrongs and promised to contribute to society in order to rectify what he had done.

25.  I have specifically asked the prosecuting counsel as to the role played by D5 in fostering the pleas entered by other defendants.  Of course, there were certain plea bargaining which resulted in the pleas entered by the other four defendants.  I believe that D5’s plea and his NPS was instrumental to the shortening of this trial which also saved a lot of court’s time and public resources.

26.  D5 pleads for leniency and asks for a chance, a big chance that he is asking for.  I have considered carefully the mitigating grounds, D5’s pleas, his cooperation with the Police and his role in securing the pleas from other defendants.  Above all, D5 has been in remand for about five weeks.  I believe that D5 will keep his promise to turn a new leaf, with the support of his family, his counsellor and his previous employer.

27.  As such, I am prepared to take an exceptional step to sentence D5.  For the AOABH and the theft charges, I adopt a starting point of 9 months’ imprisonment and with his plea the sentence is reduced to 6 months. 

28.  For the blackmail charge, I will take a term of 18 months as the starting point and with his plea the sentence is reduced to 12 months.  All these sentences are to be served concurrently. 

29.  As I said earlier on, I am prepared to give a big chance to reflect all his credits and his previous remand.  I will impose a suspended sentence of 30 months for all the sentences abovesaid.  I will not make any compensation order.  I hope D5 can and will treasure the court’s clemency and will reform himself totally to make himself one of the valuable members of society and the family.