HKSAR v. PARK SUNG JIN

DCCC 517/2021

[2022] HKDC 666

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 517 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant is charged with two counts: Charge 1, causing grievous bodily harm with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Chapter 212; Charge 2, criminal damage, contrary to section 60(1)  of the Crimes Ordinance, Chapter 200, to which he pleaded guilty and was convicted of both offences on 10 June 2022.

2.  The sentence was adjourned to today for various matters to be confirmed, including an update of the victim’s injuries, the issue of alleged delay in prosecution and the defence’s proposal of compensation.

The admitted facts

3.  On 26 April 2019, at about 11.45 pm, Chiu Chung San, aged 63, drove a taxi bearing registration no. SY6239.  He picked up two passengers including the defendant and a female in Tsim Sha Tsui.  The defendant instructed Mr Chiu to drive them to Le Bleu Deux in Tung Chung.

4.  On 27 April 2019, at about 12.30 am, Mr Chiu stopped the taxi at the entrance of the estate.  He and the defendant then entered into a dispute.  The defendant got off the taxi and kicked the right side of the taxi repeatedly, causing a large dent on the taxi.  Two passersby witnessed the defendant’s behaviour.  One of them, Ms Valerie Nichols, took out her phone with an intent to film the defendant.  The defendant stared at her and stopped kicking the taxi.

5.  The defendant then returned to the taxi and punched Mr Chiu, who was at the driver’s seat.  Both of them then got off the taxi.  The defendant threw a glass bottle at Mr Chiu’s head.  Mr Kwan Ho Man, a bartender who worked in a nearby pub, heard glass shattering sound.  He saw the defendant punching Mr Chiu and Mr Chiu falling onto the ground.

6.  After Mr Chiu had lost consciousness and was lying on the ground, the defendant continued to kick and punch him.  Ms Nichols took out her phone again with an intent to film the defendant.  The defendant scolded her in English.

7.  Ms Nichols called the police and waited at the scene for the police to arrive.  She confirmed that the defendant did not leave the scene before police arrival and told the police that the defendant was the person who hit Mr Chiu. The police found Mr Chiu lying on the ground and there were pieces of broken glass next to him.  The police arrested the defendant.

8.  Mr Chiu was sent to the North Lantau Hospital.  A medical report confirmed that Mr Chiu had the following injuries:-

(a)  severe swelling on the right eyelid;

(b)  multiple bruises over the right forehead and right eyelid;

(c)  a 3 cm laceration and hematoma over the right occiput;

(d)  blood clot in the nose; and

(e)  fracture of lateral wall of the right orbit.

9.  The police seized the defendant’s clothing upon his arrest.  Forensic examination confirmed that the DNA obtained from the bloodstain found on the outside front right surface of the defendant’s shirt could have been originated from Mr Chiu.

10.  According to Mr. Lee Shun-king, the owner of the taxi, the repair cost of the taxi was about HK$5,000.

11.  The car camera of the taxi captured the defendant got of the taxi at the entrance of the estate and walked to the right side of the taxi.  The audio of the footage recorded the sound of what appeared to be someone kicking the taxi for about four times.  The footage then captured the defendant walking back to the left side of the taxi and said, “I can hit you for real.” in Punti.  The audio of the footage recorded the sound of what appeared to be a punch.  Mr Chiu immediately said, “You hit me.” in Punti.  After about a few seconds, the audio of the footage recorded glass shattering sound and the sound of what appeared to be another punch.

The defendant’s background

12.  The defendant was born on 29 October 1986 and is now 35 years old.  He was born in South Korea.  He had been brought up and educated up to tertiary level in Hong Kong.  He was in the hospitality industry before his arrest, earning HK$56,000 per month.  He is married and was living with his wife in Tung Chung prior to the arrest.  He has no criminal record in Hong Kong.

Mitigation

13.  Mr Grounds and Mr Tope submitted a written mitigation and two supplemental mitigations for the defendant.  Apart from confirming the basic background information as supplied by the police, it is submitted that the defendant moved to Hong Kong at the age of 2, where he has spent much of his life.  He attended international school in both Hong Kong and Australia.  He obtained his Bachelor degree in international hospitality management in Australia and his Master degree in the same field in Hong Kong.  He then took up employment in a number of prestigious institutions in the hotel and hospitality industry, both in Macau and Hong Kong, between 2004 and 2021.

14.  It is submitted that he has a clear record in all the countries in which he has resided and, in particular, a document from the Consulate General of the Republic of Korea proved his clear record in South Korea.

15.  Several friends of his and also a pastor of his church also wrote to the court to show that he is a good person and plead for mercy on his behalf.

16.  It is submitted that the defendant’s good background and clear record could earn him a further reduction in sentence in addition to the one-third discount for his guilty pleas.  The defence submitted a District Court sentence decision in HKSAR v Alvarado Perdomo Edward Alexander [2018] 3 HKLRD 679.

17.  As to the reasons for committed these offences, it is submitted that the defendant had consumed a lot of alcohol in a friend’s birthday party at a hotel that evening.  He and his wife then ordered a taxi to leave the party.  There was, however, a misunderstanding relating to the destination of the journey and the payment of the fees as they had boarded a wrong taxi.  Upon arrival at his place of residence, a dispute as to the fare arose.  Under the influence of alcohol on his part and somewhat provoking demands for money from the taxi driver, the defendant damaged the taxi and assaulted the driver.  The defendant’s actions were unpremeditated.  The defence submitted that he was completely unrecognisable from his usually calm and responsible self.  He let himself down and has potentially destroyed his own marriage, his career in Hong Kong and much of his future in the hospitality industry.

18.  It is submitted that this was a one off incident.  The defence submitted that it was the combined effect of a frustrating disagreement with the taxi driver and the alcohol consumed by the defendant that night which provoked the defendant into behaving in a manner that could only be described as wrong.

19.  It is accepted that there are no sentencing guidelines for section 17 offences.  A number of cases were submitted for the court’s reference, they included:  HKSAR v Au Kam Ming & Ors, CACC 531/1997; SJ v Hau Ping Chuen [2008] 4 HKLRD 673; HKSAR v Chan Chun Tat, CACC 317/2012; and HKSAR v Yuen Wai Kui, CACC 280/2004.  I have considered all those cases and would refer to the relevant parts when necessary in my subsequent determination of the sentence.

20.  The defence submitted that the forceful demand for money for the taxi ride by the driver, where the parties were at the time not aware that the defendant had boarded the wrong taxi, had heightened the defendant’s mood and frustration.

21.  On this issue of lack of premeditation on the part of the defendant, defence relied on the case HKSAR v Hung Kar Chun [2011] 1 HKLRD 1083.

22.  It is also submitted that the effect of alcohol upon the defendant’s state of mind can serve to reduce the starting point of the sentence.  The defence submitted HKSAR v Leung Chiu Kuen, DCCC 1085/2017, a District Court sentence decision.

23.  The defence also submitted that the defendant was acting alone and he made no attempt to flee after the commission of the offences at the scene and chose to remain in Hong Kong after he was put on bail and even after he was fully released by the police.

24.  The defendant had indicated his guilty pleas to both offences at the plea court on 18 January 2022 and has spent some time in custody since then.

25.  During custody, he was respectful to the CSD officers and behaved as a model prisoner by helping his fellow inmates, to teach them English and Korean and assisting them with documents not written in their own language.

26.  On the issue of compensation, the defence submitted that the defendant is eager to compensate the injured driver and the taxi owners.  The repair cost for the taxi as stated in the Summary of Facts were $5,000.  The issue of compensation for the victim driver is, however, a more complicated issue, as I was told, the victim has applied for legal aid and would be commencing a civil claim action against the defendant. 

27.  As at today, I was told by the defence that no full or partial settlement had been reached by the defendant and the victim driver over his injuries and other claims arising from this incident.  Nevertheless, a cheque for the sum of HK$200,000 payable to the victim driver was passed on to him through the police but the driver refused to accept.  On the other hand, I was told and had it confirmed by the prosecution that the taxi owner had been paid $5,000 as full payment for the repair cost involved.  The defence submitted a copy letter dated 21 June 2022 from the defence solicitors to the police enclosing two copy cheques to substantiate the above.

28.  The defence submitted that the defendant and his wife are considering divorce and the defendant has now left his last employment.  This case and his conviction would significantly affect his future employment opportunity in the hospitality industry, and the court is invited to take that into account.  On this, the defence relied on AG v Poon Ping Kwok & Anor [1992] 2 HKCLR 231.

29.  It is also submitted by the defence that as a consequence of the incident and the resulting legal proceedings, the defendant had been diagnosed with moderate to severe major depressive disorder as evidenced by a doctor’s letter dated 13 January 2022.  But since his incarceration, he has faced up to the reality and come to terms with his imprisonment.  In so doing, he has substantially improved his own mental well-being. 

30.  The defence submitted the final aspect for the court’s consideration to be the notion of delay, relying on a District Court decision in HKSAR v Alvarado Perdomo Edward Alexander [2018] 3 HKLRD 679.  It is said that the defendant was released on bail on the date of offence, that is, 27 April 2019 and he was not charged with any offence until 11 April 2021.  That was close to two years.  Thereafter, matters moved at a normal pace.  He then first appeared at West Kowloon Magistracy on 11 May 2021.  And his first appearance at the District Court was 29 June 2021.  On 18 January 2022, the defendant, having obtained his legal advice, decided to plead guilty to both charges.  The defence submitted that the court is entitled to take into account this aspect of delay, even though no complaint is made against the police.

31.  Finally, the defence submitted a few sentencing cases for section 17 offences for my reference, they are:  HKSAR v Wan Sheung Shing, DCCC 1295/2011; HKSAR v Xiao Xianzhuang, DCCC 763/2018; HKSAR v Pang Po Lung, DCCC 636/2010; HKSAR v Yeung Shing Lam, DCCC 954/2010; SJ v Hung Kar Chun [2011] 1 HKLRD 1083 and HKSAR v Leung Chiu Kuen, DCCC 1085/2017, where starting points ranging from 2½ years to 4 years’ imprisonment were adopted.  It is submitted that the above cases present a series of circumstances that are, on the whole, more serious than those presented in this case, in that, the assailants largely planned their actions in advance and took with them weapons.

32.  On the other hand, the defendant’s assault upon the taxi driver was due to a momentary and somewhat spontaneous loss of control, clearly influenced by the heavy consumption of alcohol.

33.  To conclude, the defence urge the court to pass a sentence as lenient as possible on the defendant.  It is submitted that the assault and the criminal charge form part and parcel of the same incident.  The appropriate and correct course is to order the sentences for the two charges to run concurrently unless the court determines to impose a fine for the criminal damage charge.

Sentence

34.  I first deal with Charge 1, causing grievous bodily harm with intent under section 17 of Chapter 212.  It is a serious offence which carries a maximum penalty of life imprisonment, sentencing of which is very much case specific and there is no tariff.

35.  In Secretary for Justice v Hau Ping Chuen [2008] 3 HKC 398, the Court of Appeal was referred to an earlier judgment in HKSAR v Tse Hok Lam [2005] HKLRD 344, where the usual range of sentence is described as being 3 to 12 years’ imprisonment.

36.  Of course, it is not to say that there may not be offences under section 17 of Chapter 212 which call for higher or lower sentences than the usual range described in Tse Hok Lam if the circumstances are so unusual that they might merit sentences above or below the usual bracket.  See paragraphs 15 and 16 of the judgment.

37.  The same sentencing principle was reiterated in a more recent Court of Appeal decision in HKSAR v Wong Luk Sau, CACC 2/2012.  It was stated, in particular in paragraphs 17 and 18 of the judgment, that the range of 3 to 12 years is not a sentencing tariff and that the circumstances of the offence and the background of the offenders differ from case to case.  Other decided cases are of limited reference value.

38.  The same point is echoed and further elaborated in another authority as observed by the Court of Appeal in HKSAR v Chan Chun Tat [2013] 6 HKC 225.  Little is to be gained in embarking upon a comparative analysis of other cases.  The factor of primary importance is the intent of the assailant to cause the victim really serious bodily harm.  This is why even though the consequences to the victim will always be an important factor, the gravity of the offence lies in the deliberate resort to violence with the intent by the offender to inflict by violence really serious harm on the victim.  See paragraphs 45 and 48 of the judgment.

39.  Also, in paragraph 49 of the judgment, the Court of Appeal listed out a number of usual factors in determining the gravity of a section 17 offence. For instance, the extent to which the assault was premeditated, the reasons or motivation underlying the assault, 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.

40.  I agree that this case is not the most or more serious type, as contented by the defence, for it involved no premeditation, no use of weapon (though at one stage, the defendant threw a glass bottle at the victim’s head)  and that it was committed by the defendant alone under the influence of alcohol in the heat of argument with the taxi driver.  It is, nevertheless, a serious case where the defendant attacked the victim driver in a public place in front of others just because of a trivial dispute about the taxi ride.  The victim was much older than the defendant, the defendant nevertheless attacked him repeatedly with punches and kicks, even after the victim was unconscious and lying on the ground.

41.  The victim’s head region was injured, resulting in a loss of 75 per cent of vision on his right eye as I was informed by the prosecution through a newly taken witness statement dated 13 June 2022 from the victim.

42.  The defence took issue with the extent of vision impairment as claimed by the victim.  On the last occasion in court on 10 June 2022, I enquired and the prosecution informed me after verbal confirmation with the victim over the phone that there was a 10 per cent loss of vision on his right eye.  But now that his claim of loss of vision as said in the newly obtained witness statement is 75 per cent.  Worse still, no medical report was provided.

43.  I have considered but decided not to call for a full medical report as it would inevitably lead to further delay.  I am prepared to take a view most favourable to the defence that at least the victim suffered a certain degree of visual impairment on his right eye.

44.  In any event, as said in the earlier authority cited by me, Chan Chun Tat, the consequences to the victim, though an important factor, the gravity of the offence lies in the intent of the defendant to cause really serious harm on the victim.  In my view, it is more than obvious that the defendant did intend to inflict really serious harm on the victim in the circumstances of the case.

45.  On the other hand, I have considered the defendant’s background and his personal circumstances.  The defendant is now aged 35, with good education and background and had never been involved in any violence.  Not only that he has a clear record, but the information provided by the defence in mitigation also demonstrates his previous good character.  I am therefore prepared to accept, as put forward by the defence, that the defendant was under the influence of alcohol at the time of the offences.  That did not, of course, excuse him from committing this serious offence but explained for his clearly out of character actions of violence.

46.  I accept that the defendant is now remorseful for his impulsive violent acts in this isolated incident.  I also accept that he committed this offence mainly because of his drunkenness and arguments or misunderstanding with the victim.  He was acting alone and clearly without any premeditation.   Though it is disclosed in the admitted facts that the defendant had, at one stage, threw a glass bottle at the victim’s head, I accept that the defendant attacked the victim mainly with his bare hands and feet.

47.  Nevertheless, as said, there were serious aspects in this case where there were repeated attacks of the victim at his head region, even after he had lost consciousness and became defenceless on the ground, and that they were all done in front of passersby in a public place.  Of course, I did not lose sight of the victim’s partial impairment of vision on his right eye.

48.  Having considered all the circumstances of the case and those of the defendant, I am prepared to adopt a starting point of 3 years’ imprisonment for Charge 1.  This is already the most lenient sentence I could pass for a serious offence like this.

49.  The defendant should be given a full one-third discount for his timely plea.  This is already the high watermark even for someone of a good background like this defendant.  So the sentence becomes 2 years’ imprisonment for Charge 1.

50.  I have already taken into account the defendant’s good background, the reason for which he committed this offence and all other circumstances of the case when arriving at the said starting point.

51.  There are, however, two remaining matters which require further consideration, namely, the issue of compensation and that of delay in prosecution as suggested by the defence.

52.  On the issue of compensation, the matter was raised in the defence’s first written mitigation and discussed in court after conviction of the defendant upon his own pleas on 10 June 2022.  Although the defence expressed willingness to compensate both the injured driver and the taxi owner, nothing was materialised at that stage.  The sentence was therefore adjourned for about 20 days for that and other issues to be sorted out.

53.  Now, I am given to understand that a civil claim is contemplated by the victim driver.  And so far, no settlement or consensus has been reached between the parties.  Nevertheless, the defendant had shown his genuine intent to compensate the victim driver by passing on a cheque for HK$200,000 through the police.  It was not accepted by the victim.  Although no interim compensation had been done, I am satisfied that the defendant’s willingness to compensate is genuine and he has endeavoured to get it done.  This is more than empty promise which, in my view, should be reflected in his final sentence.  I am prepared to exercise my discretion to give him an additional discount of 2 months.

54.  Now, I proceed to consider the alleged delay in prosecution.

55.  Before the court now is a police report together with a chronology of events.  To recap, the offences took place on 27 April 2019 and the defendant was charged on 11 April 2021.  The defence contended that close to a 2-year period amounted to delay and urged the court to take that into account and reflect it in the sentence.

56.  At first sight of it, the two years taken seem to be unreasonable in light of the complexity of this case.  Now, upon closely examining the report and the chronology provided by the police, I came to realise that a very significant period of time or periods of time was or were taken to obtain statements from the witnesses, and that explained why the defendant was temporarily released and bail money returned to him on 19 October 2019.

57.  For the victim, who was injured on his head and had lost part of his memory right after the incident, a total of four statements had been taken from him between 8 July 2019 and 30 December 2020.

58.  Also, the two eyewitnesses (PW2 and PW3), being Canadians, went overseas and stayed away from Hong Kong during the COVID-19 pandemic period in 2019 and 2021.  Another eyewitness (PW4)  also left Hong Kong during part of the period between October 2019 and April 2020.  Eventually, second or supplemental statements were taken from PW2 to PW4 in April or June 2020.

59.  After legal advice from DOJ was finalised on 5 November 2020, police started to locate the defendant by phone calls and visits to his residence between December 2020 and April 2021.  The defendant by then had already been released and not on bail and was out of reach.  He was eventually located at his residence and charged on 11 April 2021.

60.  The defence suggested that the police had gone to the wrong floor and could have contacted the management office much earlier to look for the defendant.  On the other hand, the police version is that they have also tried to make calls to the defendant but with no response.  I do not seek to investigate on this relatively minor matter.  In any event, that only accounted for four months during which the defendant was released from police bail.

61.  For the relevant principles of delay, I have considered the Court of Appeal’s decision in HKSAR v Chiu Chi Wing, CACC 243/2012, where a number of factors identified in the Court of Appeal of Western Australia in Scook v The Queen were cited.  See paragraph 37 of the judgment.  I do not seek to repeat all of them.  The more relevant ones for this case are that delay is not of itself a mitigating factor.  It will not ordinarily be a mitigating factor if it has been caused by difficulties in detecting, investigating or proving the offences committed by the offender and the period of delay is reasonable in the circumstances.

62.  Having considered all the circumstances related to the time taken in investigating this case, in particular the factor or the effect of the COVID-19 pandemic in the relevant period, I do not consider that there was undue or unreasonable delay in prosecuting.  And I do not find there to be a factor of mitigation available to the defendant in this respect.

63.  To conclude, for Charge 1, I sentence the defendant to 22 months’ imprisonment.

64.  I now proceed to deal with Charge 2, the criminal damage, which is in relation to causing a dent on the taxi in question by the defendant’s kicks. The maximum penalty is one of 10 years’ imprisonment under section 63(2)  of Chapter 200.  There are no sentencing guidelines for this offence, each case turns on its own facts.

65.  Having considered all the circumstances of the case and those of the defendant, I adopt a starting point of 3 weeks, reduce it by one-third for the guilty plea and pass a sentence of 2 weeks’ imprisonment for Charge 2.

66.  The defence submitted that the assault of the victim and the criminal damage of the taxi form part and parcel of the same case and therefore should lead to concurrent sentences.  This may be true or if it is not, the defendant’s continuing acts within a very short period of time on that day can be viewed as one single incident.  I have also taken into account the defendant having fully compensated the taxi owner for the damage done, and finally, the totality principle.  I am prepared to order the sentence for Charge 2 to run concurrently with that for Charge 1.

67.  To conclude, the defendant is ordered to go to jail for 22 months in total.