HKSAR v. LUI KWOK MAN

DCCC 103/2018

[2018] HKDC 1123

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 103 OF 2018

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REASONS FOR SENTENCE

1.  The defendant stands convicted after trial of one joint charge of unlawfully and maliciously wounding Chan Jose Chun Wai with intent to do him grievous bodily harm together with Cheung Tak Sing, Ng Tin Wo and two other persons, contrary to section 17(a) of the Offences against the Person Ordinance[1] and one charge of claiming to be a member of a triad society, contrary to section 20(2) of the Societies Ordinance[2].

2.  Full particulars of the offences are set out in the reasons for verdict handed down on 7 September 2018.  In summary on the evening of 10 May 2013 three off duty police officers, Chan Jose Chun Wai (PC Chan), Sgt Man and WPC Kwok, were having dinner in a restaurant in San Po Kong.  At the same time the defendant and his group were also having dinner in an adjacent room of the same restaurant. 

3.  At about 11: 30 p.m. PC Chan went to use the toilet in the adjacent room where the defendant and his group were dining.  The diners did not allow PC Chan to use the toilet.  PC Chan therefore went to another toilet in the main restaurant which was opposite the room where he was dining. 

4.  In the early hours of 11 May PC Chan needed to use the toilet again.  While PC Chan was waiting to go to the toilet the defendant asked PC Chan if he was choked with fury about the refusal to use the toilet earlier.  PC Chan said it was OK he was not allowed to use the toilet. 

5.  The defendant then claimed to be a member of a triad society and launched an attack on PC Chan.  Four of the defendant’s group including Cheung Tak Sing and Ng Tin Wo joined in the attack on PC Chan who fell to the ground.  The attack on PC Chan was captured on CCTV. 

6.  The attack lasted over six minutes.  Although not continuous the defendant is seen repeatedly hitting PC Chan and on at least four occasions using a green plastic stool.  The details and times of when the defendant hit PC Chan are set out in paragraphs 98-100 and summarised in paragraphs 126-127 of the reasons for verdict.

7.  The defendant was arrested almost four years later in March 2017 when he surrendered to the police.  In a video recorded interview, the defendant told the police about the incident involving PC Chan and admitted that he took part in the attack on PC Chan.

8.  PC Chan was taken to the Queen Elizabeth Hospital.  The injuries sustained by PC Chan in the attack are particularised in the medical report of Dr Ho and are shown in the photographs (exhibit P4).  One of the injuries was a V-shaped laceration over the left side of the forehead which required suturing. 

Mitigation

9.  In passing sentence, I take into account everything said on behalf of the defendant by Mr Khosa, including that the attack was not premeditated and that the defendant and his group were under the influence of alcohol. 

10.  I take into account that although the defendant has convictions for violence, these were over thirty years ago in 1987 and 1988 and that the last time the defendant was in court was in 2006 for gambling.

Guidelines

11.  Violence of this kind must be met with deterrent sentences.  In HKSAR v Hau Ping Chuen[3] the Court of Appeal referred to the usual range of sentence for wounding with intent being described as 3-12 years. 

12.  In HKSAR v Chan Chun Tat[4] the court listed 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 reasons or motivation underlying the assault upon the victim; the mental or emotional state of the assailant at the time of the assault; whether alcohol or drugs contributed to the actions 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 or aggression 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.  Mr Khosa submits for the consideration of the court HKSAR v Wong Luk Sau[5]and HKSAR v Dharminder Singh[6], two sentence cases for wounding 17.  In HKSAR v Wong Luk Sau the Court of Appeal held that the appropriate starting point for a premeditated attack using a knife was 2 years and 3 months’ imprisonment.  Mr Khosa submits that case was far more serious.

14.  The applicant in HKSAR v Wong Luk Sau was 72, had one conviction for gambling and had received a heart operation.  The facts of the case in which two residents of a housing estate who knew each other and had a quarrel over a chess match, are very different to the facts of the present case.  Similarly, the facts in HKSAR v Dharminder Singh are also very different.

15.  As noted by the Court of Appeal in HKSAR v Hau Ping Chuen there are a host of wounding with intent decisions which might be used in favour of a lenient view whereas others favour a stricter view.  The court said that:

“At the end of the day, a sentencing court obtains a ‘feel’ for the appropriate result by regard to the attitude of courts over a period of time to a great variety of circumstances.”

16.  Each case is to be decided on its own facts and circumstances.

Sentence of Cheung Tak Sing and Ng Tin Wo

17.  Cheung Tak Sing and Ng Tin Wo both pleaded guilty on 17 October 2013 when the prosecution accepted pleas to unlawfully and maliciously wounding PC Chan, contrary to section 19 of the Offences against the Person Ordinance[7].  

18.  On 7 November 2013 HH Judge Yiu sentenced both defendants to 8 months’ imprisonment. Notwithstanding the court has convicted the defendant of the more serious charge of wounding with intent, Mr Khosa submits that the factual basis of sentence being the same the defendant would have a real sense of grievance if the sentence imposed on him was very different to that of Cheung and Ng. 

19.  Mr Khosa submits for the consideration of the court HKSAR v Chow Tak Fuk[8] and HKSAR v Chan Chi Fai[9]where the Court of Appeal discussed the issue of disparity of sentence. 

20.  I have had the opportunity of reading the facts admitted by Cheung and Ng and the reasons for sentence, agreed translations having been submitted to court by the defence[10]. 

21.  In the summary of facts admitted by Cheung and Ng it is stated that after male B and male C joined in the attack Cheung and Ng joined in the attack later[11].  By looking at the CCTV footage I am satisfied that Cheung and Ng are the first two who joined in the attack and not later as stated in the summary of facts. 

22.  In the CCTV footage between 01:03:43 and 01:03:55 (CH 03) the clothing of the four males who join in the attack can clearly be seen.  The first male is wearing dark upper garment and light coloured trousers and the second male is wearing white upper garment and dark coloured trousers and carrying a back pack.  This male  is identified as Cheung in the reasons for sentence of HH Judge Yiu[12].  The third male is wearing a grey T-shirt and blue trousers and the fourth male is wearing a white shirt and dark trousers.   

23.  Between 01:09:40 and 01:09:55 (CH 04) the second male (Cheung) and the fourth male are seen leaving followed by the defendant and the third male.  At 01:10:49 (CH 04) the second male (Cheung) is seen walking back and joining the first male (Ng) who appears to be talking to Sgt Man.  Shortly after at 01:11:12 (CH 04) the police arrive and intercept the first male (Ng) and the second male (Cheung) at which time there appears to be a further incident involving Sgt Man and PC Chan. 

24.  I am of the view that the CCTV footage clearly shows that Cheung and Ng were both actively involved in the attack on PC Chan.  I disagree that their role was minor as stated by HH Judge Yiu at paragraph 8 of his reasons for sentence. 

25.  In the initial stage as seen from CH 03 when all four join in the attack there is no attempt to stop the attack.  All four clearly join in the attack on PC Chan. The first male (Ng) gets hold of PC Chan and the second male (Cheung) is seen kicking PC Chan at least twice, once on each occasion when PC Chan falls to the ground (CH 03 between 01:03:40 and 01:04:05). 

26.  The second time PC Chan falls to the ground is best seen by viewing CH 04.  In my view at this stage the second male (Cheung) is seen kicking PC Chan[13] while the first male (Ng) is seen holding PC Chan by the neck allowing the defendant to hit PC Chan.  Nobody is trying to stop the attack on PC Chan (CH 04 between 01:03:57 and 01:04:20). 

27.  The defendant is next seen using the green plastic stool to hit PC Chan. No one is seen stopping the defendant using the green plastic chair.  PC Chan manages to stand up and tries to run away.  The defendant holding the green plastic chair and three of the attackers, including first male (Ng) and the second male (Cheung) follow PC Chan who then runs away to where the fourth male is (CH 04 between 01:04:55 and 01:05:15). 

28.  The fourth male pushes PC Chan towards the railings.  No one is seen trying to stop the fourth male pushing PC Chan against the railings (CH 04 between 01:05:10 and 01:05:50).    

29.  Although the attack is not continuous, from the CCTV footage there is minimal, if any, attempt by any of the four males including Cheung and Ng to stop the attack, in particular between 01:03:40 and 01:05:55.  No one tries to stop the defendant using the green plastic chair and whenever Sgt Man tries to stop the attack he is pushed away. 

30.  In the circumstances Cheung and Ng are perhaps fortunate that the prosecution accepted pleas to section 19 wounding and agreed that they joined in the attack after male B and male C.  In my view the CCTV footage clearly shows Cheung and Ng were the first two to join in the attack.  I do not accept that there role was minor or relatively minor and that they tried to dissuade people from fighting[14].

31.  The sentence imposed on Cheung and Ng for section 19 wounding was in my view lenient. During the hearing on 7 September when the court indicated that to properly consider the submission that the defendant would have a real sense of grievance if the sentence imposed on him was very different to that of Cheung and Ng, the court would require translation of the facts admitted by Cheung and Ng and the reasons for sentence, Mr Khosa said in his view the sentence imposed on Cheung and Ng was “quite light”. 

Sentence

32.  Having viewed the attack and considering that PC Chan was attacked by five persons for a period of over six minutes, although not continuous, it is most fortunate PC Chan was not more seriously injured, a fact Mr Khosa also accepted in mitigation.

33.  Having carefully considered all the circumstances, including that the attack was not premeditated; five persons including the defendant attacked PC Chan; the defendant started the attack; the attack lasted over six minutes, although not continuous, the defendant repeatedly hit PC Chan and on at least four occasions used a green plastic stool; the attackers were under the influence of alcohol; the injuries sustained by PC Chan; the attack was over five years ago; and that apart from gambling in 2006 the defendant had been out of trouble for almost twenty-five years when he committed the present offence and has not committed any offence since, I am satisfied the proper sentence after trial on charge 1 is 2 years and 6 months’ imprisonment and on charge 2 is 6 months’ imprisonment.

34.  Both offences arising out of the same incident I am satisfied concurrent sentences are appropriate.  The defendant is sentenced to 2 years and 6 months’ imprisonment.