HKSAR v. KWOK WANG HIN AND OTHERS

DCCC 478, 838/2021 & 1007/2022 (Consolidated)

[2026] HKDC 601

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 478, 838 OF 2021 AND 1007 OF 2022 (CONSOLIDATED)

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REASONS FOR SENTENCE

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1.  This case involves 6 defendants.  D3 Chung Wai Chung already pleaded guilty to the charges (including Charges 1 to 3) he faced.  After trial of the remaining 5 defendants, D1 was acquitted of all charges while D2, D4, D5 and D6 were convicted of the following charges:

(1) D2, D4 and D5 were convicted of 1 count of causing grievous bodily harm with intent[1] (Charge 1);

(2) D2, D4, D5 and D6 were convicted of 1 count of wounding with intent[2] (Charge 2); and

(3) D4 was convicted of 1 count of common assault[3] (Charge 3).

Facts

2.  The facts and evidence of this case have been set out in detail in my Reasons for Verdict.  I am not going to repeat all the facts here. 

3.  In gist, this case relates to an incident happened in the morning of 22 July 2020 on Cheung Chau Island.  At around 06:31:00 on 22 July 2020, a group of assailants were pursuing after PW1 (victim of Charge 1) and a person with white T-shirt (“the Unknown Person”, victim of Charge 3) at Kwok Man Road, Cheung Chau (“the Location”). 

4.  At approximately 06:31:04 on the same day, at the Location, the Unknown Person was hit by a long object held by D4 (Charge 3).  Shortly after, the Unknown Person managed to escape from the assailants and left the Location.

5.  Unfortunately, PW1 lost his balance and fell to the ground while still at the Location.  He was the subject of a brutal attack by a group of assailants including D2, D4 and D5.  As a result, PW1 sustained grievous bodily harm (Charge 1).

6.  At around the same time, PW2 (victim of Charge 2) came to the Location where PW1 was beaten by the assailants.  PW2 saw the attack and was subsequently attacked by D2, D4, D5 and D6.

7.  As a result of the attack, PW1 sustained serious injuries including loss of eye sight of left eye, fingers and nasal bone fracture, scalp hematoma at various regions and lacerations at right hand and left wrist.  He was discharged from hospital on 28 July 2020.

8.  PW2 was found to have a deep laceration of 4cm in length at right side of scalp.  He was discharged from hospital on 22 July 2020. 

Mitigation

A. Mitigation common to all defendants

9.  Apart from the individual background and mitigating factors of each defendant as set out below, counsel for D2, D4, D5 and D6 made similar submissions on the circumstances of the attacks, delay in prosecution and totality of sentence.

10.  Regarding the circumstances of the attacks, it was submitted that the attacks were not premeditated and the objects used in the attacks were picked up from the vicinity.  CCTV footage shows that PW1 was the initial aggressor. The duration of the attacks was relatively short and the pursuit of the Unknown Person was also brief.  PW2 did not suffer from any permanent disability.  As to PW1, apart from the eye injuries, he recovered gradually.  There is no evidence as to any injury suffered by the Unknown Person. 

11.  It was also submitted that there was inordinate delay in prosecution. It was pointed out that the trial of this case has been refixed twice.  On the first day of trial of the first set of trial dates in June 2023, the case was adjourned due to absence of prosecution witnesses.  Subsequently, the case was adjourned for more than a year for the prosecution to locate the 2 missing witnesses.  Later on, the case was refixed for trial in September 2024.  In June 2024, the defence were informed by the prosecution that they would rely on enhanced CCTV footage in the trial.  As there was challenge to the admissibility of the enhanced CCTV footage and expert evidence needed to be obtained, the trial dates were vacated and the trial was refixed to September 2025.  It was submitted that even if there was no delay in bringing the case to court, the prosecution had been changing their stance in the prosecution of the case  thereby leading to delay of the trial.  As a result, all defendants suffered.    Given the case had been dragged on for over 5 years, the defendants were under great pressure during this period.  This Court was urged to consider this as a mitigating factor and grant a discount for this.

12.  All counsel agreed starting points of sentence for the 3 charges should be similar to those adopted in the sentencing of D3.  Defence submitted that given the compressed and continuous nature of the offending in that the charges stemmed from the same series of acts arising from the same incident on the same day, this Court was urged to consider ordering the sentences for all charges to run wholly concurrent.  Even if this Court considered some consecutive element was necessary, it was submitted that the portion should not be greater than that previously imposed on D3.  

13.  All counsel urged this Court to impose lenient sentence on the defendants.

B. D2’s mitigation

14.  D2 is aged 23 and was almost 18 at the time of the offence.  He is single and worked as a small group leader of warehouse and transportation workers prior to the current detention, earning around $30,000 per month.  He contributed about $15,000 per month to his family.  He has a clear record.

15.  D2’s parents got divorced when D2 was aged 14.  Prior to the current detention, he lived with his mother and 2 sisters.  His mother is a housewife, his elder sister works as an administrative assistant.  His younger sister is aged 18 with Congenital Heart Defect and Down’s Syndrome.  D2 worked hard to provide income for the family and actively took care of his younger sister.  Mitigation letter from D2’s mother showed that D2 played an important role in the family.

16.  It was submitted that the assault was not premeditated but things happened so quickly that given D2’s young age at that time, he simply got carried along the way and it went out of control.  Further, it was submitted that this was a one-off incident and the chance of re-offending was extremely low.

C. D4’s mitigation

17.  D4 is aged 29, single, and resided with his parents and elder sister prior to the current detention.  Both his parents are working.  Between 2022 and 2023, D4 was employed as a construction worker, earning about $20,000 to $30,000 per month, and made regular contributions of about $5,000 per month to his parents.  Between 2023 and 2025, D4 worked as a customer service assistant after the closure of his former employer’s business. 

18.  D4 has previous conviction records including one conviction for inflicting grievous bodily harm in 2013.  It was submitted that limited weight should be attached to it given it occurred more than a decade ago when D4 was still a teenager and there had been no subsequent conviction for any offence involving violence. 

19.  Defence submitted that the mitigation letters showed D4 was a gentle and courteous person.  The incident was inconsistent with his character.  D4 was the breadwinner of the family and took care of his grandmother.  D4 was remorseful for what he had done.  He expressed his apologies to the victims. He was ready to bear the consequence of his wrongful act.  D4’s employer regarded him as a diligent and responsible employee.  His employer was willing to employ him after he served his sentence.

D. D5’s mitigation

20.  D5 is aged 28.  Prior to the current detention, he lived with his fiancée and the son of his fiancée.  He has previous records 9 years ago, which is not of a similar nature.  The defence invited this Court to treat D5 as a fresh offender.

21.  D5’s parents got divorced when D5 was young.  His mother was solely responsible for raising him and his two younger sisters.  Due to medical conditions, D5’s mother was unable to continue with her full time job.  D5 thus became the main breadwinner of the family in financing his younger sisters to study.  Before D5’s remand, he was working as a construction worker earning around $25,000 per month and gave around $15,000 to his family.  He also supported his grandparents.  It was submitted that the sentence would have a devastating effect on D5 and his family.

22.  Defence submitted that the mitigation letters showed D5 was a filial and responsible son and brother.  He was not a violent person and D5’s family members believed the current incident was an isolated incident.  D5’s employer was willing to employ him after he served his sentence.

23.  Regarding Charge 1, it was submitted that D5 only arrived at the scene at 06:31:13 without holding any weapon.  Even if PW1 was struck by a pallet-like object, it was a single blow.  Later on, D5 was seen trying to pull away other person who was assaulting PW1.  His intention to stop others did prevent PW1 from being more seriously injured.  In relation to Charge 2, although D5 was found to be part of a joint enterprise in assaulting PW2, he was not involved in physically hitting PW2.  D5’s act should be considered less serious than those who had actually hit PW2 with objects.

E. D6’s mitigation

24.  D6 is aged 33 and has been living with his girlfriend since 2020.  They plan to get married after this case is over.  D6 began to work as construction worker since 2023.  Although he has a conviction relating to dangerous drugs in 2023, he quitted drugs thereafter. 

25.  Defence submitted that the mitigation letters showed D6 was a kind and supportive person, a responsible and good employee.  His employer would continue to employ him upon his release from prison.  Further, D6 had been doing volunteer works for several years. 

Sentence

26.  Wounding with intent / causing grievous bodily harm with intent is a very serious offence.  There is no sentencing guideline in respect of this offence.  The range of sentence for this offence is usually from 3 to 12 years’ imprisonment.

27.  In HKSAR v Ma Tik Lun Dicky [2015] 1 HKLRD 380, the Court of Appeal referred to HKSAR v Chan Chun Tat [2013] 6 HKC 255 and reiterated that “wounding with intent” is a serious offence warranting a deterrent sentence and set out the major sentencing considerations^[4]:

(1) the extent to which the assault was premeditated;

(2) the motivation underlying the assault;

(3) the mental or emotional state of the assailant;

(4) whether the assailant was acting under the influence of alcohol or drugs;

(5) whether the assault was committed by the assailant alone or as part of a group;

(6) the type of weapons employed;

(7) the level of force used;

(8) the injuries caused to the victim; and

(9) the effect of the assault upon the victim (and those close to himor her).

28.  In that case, the Court of Appeal also set out the aggravating factors for wounding case^[5]:

(1) the defendant was the principal offender;

(2) the assault was committed in company;

(3) the assault was unprovoked;

(4) the assault took place in a public place;

(5) the assault went on after the victim had fallen down;

(6) the assault went on after the victim became unable to defend himself;

(7) the victim suffered serious and lasting injuries; and

(8) at the police interview, the defendant misled the police as to the facts, indicating a lack of remorse.

29.  D2, D4, D5 and D6 are all convicted after trial.  They are not entitled to the usual one third discount for guilty plea. 

30.  It is clear from my verdict that the incident in question comprised of 3 separate attacks with different combination of assailants.  This is a serious case.  In sentencing, I have considered the following circumstances of the attacks:

(1) the attacks were not premediated;

(2) the attacks all lasted for a very short period of time;

(3) the CCTV footage shows PW1 was the initial aggressor;

(4) the defendants acted in company with others;

(5) the attacks were carried out in a public place;

(6) the defendants picked up weapons in the vicinity and repeatedly attacked the victims;

(7) the attack went on after PW1 had fallen to the ground and was unable to defend himself; and

(8) as a result of the attack, PW1 suffered serious and lasting injuries including loss of eye sight of one eye. For PW2, he suffered a deep laceration on his scalp with no evidence of any permanent disability caused. For the Unknown Person, there is no evidence of any injury sustained by him.

31.  When considering the sentence, I also bear in mind the sentences I imposed on D3 who pleaded guilty to all the charges he faced before me.  Given the seriousness of the attacks as revealed in the trial is no different from the seriousness of the attacks as revealed in the facts on which I sentenced D3, to maintain parity of sentence amongst co-defendants, I will adopt the same starting point for the charges as in D3’s case.  In other words, the starting point for Charges 1, 2 and 3 are 5 years’, 4 years’ and 6 months’ imprisonment respectively.

32.  While it was pointed out that a particular defendant had not physically attacked any of the victims, given he was party to the joint enterprise, his culpability is no different from other members of the joint enterprise (save and except with a leading role in the joint enterprise).  Therefore, no adjustment will be made for the fact that a certain defendant in the joint enterprise did not physical attack the victim.

33.  D2 has a clear record while D6 had a clear record at the time of the offence.  I will exercise my discretion and grant them a discount of 2 months for their clear record.  I note that D6 has taken part in volunteer work for several years.  I will grant him an additional discount of 1 month for his positive good character.  D4 has 5 previous conviction records, 1 of which is wounding in 2013.  D5 has 3 previous conviction records, all of which are not of similar nature to the present case.  I will not consider D4’s and D5’s previous conviction records as aggravating factor in sentencing.   

34.  Regarding the issue of delay in prosecution, according to the chronology of events prepared by the prosecution, D2 was the first one to be arrested amongst the 4 defendants now before me.  It took about 8 months for investigation and legal advice from the date of first appearance of D2 in the magistrates’ courts to transfer of the case to District Court.  While 8 months is not a short period, given this case involved gang attacks by multiple persons, I have no doubt that time is required to be spent on forensic examinations, arrangement of identification parades, viewing of CCTV footages and statement taking from witnesses, etc.  Thus, I do not consider there was inordinate delay in the prosecution of this case.  After this case was transferred to District Court, this case was adjourned for various reasons such as arrest of other co-defendants and absence of prosecution witnesses.  I also take note of the submissions from the defence that the trial of this case was refixed twice due to change in stance of the prosecution in the conduct of the trial and the evidence that they were going to rely.  I agree such circumstances are unusual and delay was caused due to no fault on the part of the defendants.  As this case has been dragged on for over 5 years, I understand the pressure suffered by the defendants during this period and am prepared to exercise my discretion and grant a discount of 4 months for this.  Further, I note that at the time of the offence, D2 was almost 18 years’ old.  If this case could be concluded much earlier, detention in Training Centre would also be an option in the sentencing of D2.  Having considered such special circumstances and bearing in mind the various reasons for adjournment of this case, I am minded to grant an extra discount of 1 month to D2.

35.  I understand the sentence to be imposed on the defendants will have an impact on their families.  However, family hardship is normally not a factor to be taken into account in sentencing.  Therefore, no discount will be granted for family hardship.

36.  As far as totality is concerned, while Charges 1-3 were committed within a short period of time on the same day arising from the same incident, these are 3 separate attacks and the defendants before me chose to take part in one, two or all of the three attacks.  Therefore, I do not consider it appropriate to order total concurrent sentence on Charges 1-3 as this cannot reflect the overall culpability of each defendant. 

37.  In view of all the circumstances and the totality principle, sentence of the four defendants are as follows.

D2’s sentence:

(1) Charge 1: starting point 5 years’ imprisonment, reduced to 4 years and 5 months’ imprisonment for clear record, special circumstances and delay

(2) Charge 2: starting point 4 years’ imprisonment, reduced to 3 years and 5 months’ imprisonment for clear record, special circumstances and delay, 4 months of the sentence to run consecutively to Charge 1

(3) Total sentence 4 years and 9 months’ imprisonment

D4’s sentence:

(1) Charge 1: starting point 5 years’ imprisonment, reduced to 4 years and 8 months’ imprisonment for delay

(2) Charge 2: starting point 4 years’ imprisonment, reduced to 3 years and 8 months’ imprisonment for delay, 4 months of the sentence to run consecutively to Charge 1

(3) Charge 3: starting point 6 months’ imprisonment, reduced to 2 months’ imprisonment for delay, 1 month of the sentence to run consecutively to the sentence of Charge 1

(4) Total sentence 5 years and 1 month’s imprisonment

D5’s sentence:

(1) Charge 1: starting point 5 years’ imprisonment, reduced to 4 years and 8 months’ imprisonment for delay

(2) Charge 2: starting point 4 years’ imprisonment, reduced to 3 years and 8 months’ imprisonment for delay, 4 months of the sentence to run consecutively to Charge 1

(3) Total sentence 5 years’ imprisonment

D6’s sentence:

(1) Charge 2: starting point 4 years’ imprisonment, reduced to 3 years and 5 months’ imprisonment for clear record, positive good character and delay