HKSAR v. TSO KA MING, RAYMOND AND ANOTHER

DCCC 517/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 517 OF 2016

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REASONS FOR SENTENCE

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1.  D1 pleaded not guilty to Charge 1, 2 and 3 yesterday, but pleaded guilty to Charge 4. Having heard evidence from the witness Cheng Chi Wing yesterday, the victim in Charge 2, he then changed his plea today. Today he pleaded guilty to Charge 2 and 3. Charge 2 is Wounding With Intent, contrary to section 17A of the Offences Against the Person Ordinance, Cap 212, and Charge 3 is AOAHB, contrary to Common Law and punishable under section 39 of the Offences Against the Person Ordinance, Cap 212.

2.  As to Charge 1, PW1 cannot be located and he had already indicated to the Police that he would not come forward to give evidence.  This is already the second time fixed for trial,  the prosecution decides to offer no evidence against D1 and all the charges against D2.  For this reason I dismissed all the charges against D2 and Charge 1 against D1.

Summary of facts

Charge 2 and 3

3.  On 23 November 2015, at around 3.00 am, PW1 to 3 were sitting together chatting and drinking outside 7-Eleven convenience store at Yat Tung Shopping Centre.  D1 and another man approached them.  D1 pick up a full beer bottle and forcefully struck on the head of PW2.  The bottle was then broken.  D1 continued to attack PW1 on the head with fist for a few seconds until PW2 ran away. 

4.  At the same time the other man assaulted PW3 with a beer bottle.  After a short while PW3 ran away.  During this assault PW3 sustained redness and swelling on the back of the neck and left forearm. 

5.  Cheng Chi-wing, PW2, received medical treatment at North Lantau Hospital.  There was a 2cm laceration over his right upper eyelid, 3cm laceration over his left face and 4cm laceration over his right arm.  There were multiple abrasions over his lateral arms and forearms.  He complained of visual impairment of his right eye after the injury.  He attended an eye clinic on 25 November and was given eye drops.  He received no further treatment.

6.  D1 admitted that in concert with the other man he wounded PW2 with intent to do him grievous bodily harm and assault PW3, thereby occasioning actual bodily harm. 

Charge 4

7.  D1 was granted bail but failed to appear in court on 20 February 2017.  A warrant was issued for his arrest.  He was arrested on 11 March 2017 and brought before a Judge in the District Court on 13 March 2017.  He did not provide any reasonable excuse for failing to surrender to custody.

Previous conviction

8.  In 2011 he was sentenced to DATC for an offence of section 17 Wounding.  In 2012 he was fined for an offence of affray.

Mitigation

9.  He is now 24, came from a broken family.  He has an elder brother lived in Australia.  He lives with his mother in Tung Chung. Today his mother is in court and has a mitigating letter from her saying that she feels very sad to see her own son end up in this situation.  She hopes this court can give her son an opportunity to turn over a new leaf.

10.  As to the defendant, he told me in his mitigating letter that he was in bad mood at the material time because his girlfriend left him and he had been drinking a lot that evening.  He is now remorseful and regrets for what he had done to the victim.  He apologised to him.  At the meantime he is now a Catholic.

Sentence

2^nd charge – wounding with intend

11.  Wounding is a serious offence that has no guideline or tariff the court would follow.  Each sentence will be case specific, obvious relevant factors including the injury suffered by the victim, whether or not weapons were used, when and under what circumstances the attack was, in the public place versus a private place.

12.  In HKSAR v Chan Chun Tat (CACC317/2012) the court list a number of relevant factors to be considered in determining the gravity of the offence and the culpability of the offender, including, the extent to which the assault was premeditated, the reason or motivation underlying the assault upon the victim, the mental emotional state of the assailant at the time of assault, whether alcohol or drugs contribute to the action of the assailant, whether the assault was committed by the assailant alone or as part of a group, the type of weapons employed, the level of force of aggressions and the persistence with which the assault was pressed home, the injuries caused to the victim and the effect of the assault upon the victim and those close to him or her.  

13.  In the present case the victim did not know D1 and the other assailant.  They were just there to have a chat and a drink. There was no evidence to suggest that there was any sign of provocation.  It was 3.00 am in the morning.  The assault was not premeditated.  It was taken place in a public place.  D1 admitted that he acted in concert with the other man to attack PW2 and PW3.  D1 just pick up a big size beer bottle, a full bottle which have not been opened, and smashed it on the left side temple of Cheng Chi-wing with force.  When a bottle was full with liquid it carried more weight than an empty bottle.  The bottle became a more lethal weapon while the victim was defenceless.  

14.  The area of attack was just next to the eye.  It was utmost dangerous that the broken glasses could have come into contact with the victim's eyes and that might cost him injuries to his eye.  D1 did not stop.  He continued his violent attack on the victim with fist on his face and his head.  The victim received 2 cm laceration over his right upper eyelid, 3 cm laceration over his left face and 4 cm laceration over his right arm.  There were multiple abrasions over his lateral arms and forearms.  He complained of visual impairment of his right eye after the injury.  He was given eye drops. He was apparently fine yesterday when giving evidence.  At least he did not receive any further treatment. 

15.  The only reason of this assault on the victim was because D1 was in a bad mood, his girlfriend left him, he vented out on the victims.  He can expect no leniency from the court.  A deterrent sentence is necessary.  As is stated in the case of Wong Luk Sau (CACC2/2012), the Court says that there are no sentencing guidelines for the offence of wounding with intent.  In the case of Hung Kar Chun ( CAAR 9/2010 ) , the Court of Appeal established a range of 3 to 12 years' imprisonment for this offence. It is true that the range of 3 to 12 years is not a sentencing tariff and the court is not obliged to impose 3 years' imprisonment as the minimum. 

16.  To this end, I adopt a starting point of 3 years 6 months for Charge 2.  Since D1 pleaded guilty to the charge after PW1 had given evidence-in-chief I consider that 10 per cent discount on the sentence is appropriate.  It comes to 3 years 1 month.

3^rd charge - AOABH

17.  It was also an attack on PW3 with a beer bottle.  PW3 sustained redness and swelling on the back of the neck and left forearm.  The weapon was a glass bottle.  The injury was redness and swelling. The area of attack was the back of the neck and the forearm.  Again there is no evidence from the Summary of Facts to suggest there was anything said by the victim or any exchanges between the victim and the defendant.  It was a pure attack on an innocent public. 

18.  I take a starting point of 35 weeks.  As to this charge no witness has given evidence, but D1 had absconded previously and a new trial date was fixed again for yesterday and today.  I allow 20 per cent discount for his guilty plea.  He has to serve a sentence of 7 months.  I order 2 months to serve consecutively to Charge 2.

4th Charge - Failing to Surrender to Custody

19.  D1 was granted bail to attend court on 20th February 2017 for his trial.  He failed to attend and was arrested on 11th March 2017.  The period of absconding was about 20 days.  This resulted in an additional court hearing and waste of previous trial dates which have been set aside to hear this case.  Today I am told a fresh charge was laid in May this year.  Your first opportunity to plead to the 4th charge was yesterday.  I am satisfied that a starting point of 6 months' imprisonment is appropriate. Giving the defendant full credit for his guilty plea, one-third discount, it comes to 4 months.  

20.  In HKSAR v Lo Kam Fai (CACC374/2014), the Court of Appeal said that in principle sentence ought to be served consecutively.  I am satisfied that a consecutive sentence is appropriate.  I order 4 months to be served consecutively to Charge 2 and 3.

Conclusion

21.  Charge 2: -  3 years 1 month;

Charge 3: - 7 months, 2 months consecutively to Charge 2;
Charge 4: - 4 months consecutive to Charge 2 and 3.

A total sentence of 3 years 7 months.