HKSAR v. POON CHING KI

DCCC 31 & 561/2007
(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS. 31 & 561 OF 2007

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Reasons for Sentence

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The charge and facts

1.   The defendant pleads guilty to conspiracy with 3 others to wound with intent a person, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212 and sections 159A and 159C of the Crimes Ordinance, Cap. 200.

2.   The Defendant was a part-time employee of Fung Tat Pharmacy (“Fung Tat”). On 2 December 2006, he offered to pay his friends, CHOI, CHONG, and LEONG $20,000 as reward if they could attack a certain person of Fung Tat with a knife. The trio agreed.

3.   At about 9:30 p.m. on 3 December 2006, CHEUNG Hoi-au, who was the boss of Fung Tat (“Boss”), and his friends, namely the Target and CHENG Kam-chau, went to McDonald’s Restaurant at Yau Man Street, Quarry Bay (“McDonald’s”).

4.   Acting on the Defendant’s instructions, CHOI collected a knife and met the others in Quarry Bay. When CHOI arrived, the Defendant was leading CHONG into McDonald’s. The Defendant and CHONG came out and the Defendant told CHOI that he (the Defendant) had already identified the Target to CHONG. The Defendant told them to attack the Target fiercely. The Defendant handed a beer bottle to CHONG. He asked LEONG to find a taxi for the others to get away.

5.   At about 10 p.m., the Target accompanied the Boss to go home. At that juncture, CHONG told CHOI that the Target had gone out. They followed the Target and the Boss from behind closely.

6.   When the Target and the Boss were walking outside No. 986, King’s Road, North Point, CHONG bashed the head of the Target with the beer bottle. The Target dodged it and caught hold of CHONG. CHOI stabbed the Target with the knife. CHONG and CHOI then fled. The Target made a report to the police.

7.   The Boss was not injured. The Target went to the Pamela Youde Nethersole Eastern Hospital for treatment. He was found to have a 3 cm deep laceration over forearm and a 2 cm wound over the dosum of hand. He was discharged on the following day.

8.   At about 10: 35 p.m. on 3 December 2006, CHONG and CHOI were arrested. On 24 May 2007, LEONG was arrested. On 28 May 2007, the Defendant was arrested.

9.   CHONG, CHOI, and LEONG were subsequently dealt with by the Court for the present event.

Mitigation put forward

10.   The Defendant is 26 years of age. He received education up to F.5. Afterwards he worked as a hawker for 2 years. He remained idle most of the time. He has two previous convictions, one of which was for criminal damage and the other for dealing in radio communication apparatus. He was instructed by his employer to launch an attack. He instructed the attackers to carry it out but the attackers mistook the victim.

11.   Counsel informs me that two attackers, aged 17 and 20 respectively, whom he instructed to attack, had both pleaded guilty and received a Detention Centre order.

Sentencing principles

Examples of sentences bearing similar features

12.   There are no sentence guidelines. The customary sentence is imprisonment. Assistance may be had from previous cases which bore certain similar features like common design, pre-meditation, using of weapons, and degree of injuries.

13.   In AG v Li Fung-leung [1987] HKLR 176, the 1st respondent was the cohabitant of a woman, Wong. Wong had an affair with another man. The 1^st respondent made an appointment with Wong for a talk. The 1^st respondent was in the company of his group, which included the 2^nd respondent. Wong was in the company of her group. The talk broke down. The 1^st respondent ordered the 2^nd respondent and his group to attack Wong. Wong suffered a penetrating wound in the abdomen, and some laceration wounds on the back, abdomen, and face. Despite her injuries, the 1^st respondent dragged her upstairs to their cohabitation flat. There was no mention of the use of weapons in the judgment. The Court of Appeal regarded a starting point of 4 years’ imprisonment appropriate.

14.   In R v Cheng Shu Wai Crim App No 180/1990, the applicant and other members of the same triad society launched a revenge attack on the victim, who was of another triad society. The victim received 14 chop wounds over the body and arms, apart from one chop wound under his left ear and there was one chop wound to the top of his head. He suffered permanent scarring from each of those wounds. The Court of Appeal affirmed a starting point of 5 years’ imprisonment.

15.   In AG v Tam Tung Sing AR 13/1991, the respondent in a group launched a pre-meditated attack armed with knives on the victim in a cooked food stall in Canton Road, Tsimshatsui. The chop wounds fractured the victim’s skull, and cut his upper chest, abdomen, shoulder, right thigh and knee, right elbow and right forearm. His right thumb was cut off. His palm was cut into two halves. The medical treatment necessitated the amputation of the victim's left index and little fingers. The victim was hospitalized for over 2 months. The Court of Appeal regarded 9 years’ imprisonment as the proper starting point.

16.   In R v Fok Tin-yau Crim App No 305/1994, the applicant and six others ambushed and attacked the 2 victims with water pipes and 17- to 18-inch knives outside a karaoke bar. He hailed taxis for the attackers to flee the scene. The Court of Appeal affirmed a starting point of 4 years’ imprisonment for each of the attacks.

17.   In HKSAR v Gurung Tikaram CACC 532/2003, a Newton hearing was held to determine the reason for the attack. The sentencing judge was satisfied that it was a planned attack for reward. The victim sustained stab wounds on the back, swelling on the face, and a 3-cm laceration on the head. The Court of Appeal regarded 5 years’ imprisonment as the proper starting point.

18.   In SJ v Hau Ping Chuen [2008] 4 HKLRD 673, both the respondent and the victim belonged to the same indigenous clan in the New Territories. In a meeting among its clansmen, the victim made a proposal of a new practice in its financial affairs which would go against the applicant’s interest. The applicant was not present at the meeting but learned of the proposal soon. In the early morning a few hours afterwards, the applicant ambushed the victim with a knife, which was 11 inch in all with a 5 ½-inch blade. The victim received a 5-cm wound over the abdomen and a 5-cm cut wound on his left groin. He was hospitalized for 3 days. The Court of Appeal regarded 5 years’ imprisonment as the least starting point.

19.   In HKSAR v Law Kwok Fai CACC 204/2003, the victim terminated the applicant’s decoration contract of a flat as he found the applicant behind schedule. The applicant arranged for a talk with the victim. The talk took place in the presence of their colleagues. The applicant and the victim fought after the talk broke down. The applicant left but returned later to hit him from behind with a torch. He ran away and another man joined to hit him on the ground. He was hit on the head while the other man continued to hit him with the torch. A colleague tried to help him but was also chased after and attacked on the head with torch. The Court of Appeal affirmed a starting point of 4 years’ imprisonment for the attack on each of the victim and his colleague on the basis that it was a planned attack in revenge for a failed business transaction.

Sentencing the Defendant

20.   The Defendant offered to pay 3 attackers with a handsome reward of $20,000. He coordinated the attack. They were to be armed with a knife and a glass bottle. They were to have the victim first identified by the Defendant in the restaurant.

21.   The fact that the attackers had misidentified the victim is not a mitigating factor. The Defendant’s role was much more serious than that of the actual attackers, who were around 20 years old and used by the Defendant. It does not promote the Defendant’s mitigation by attempting to draw any possible analogy from the attackers’ sentences.

22.   I take a starting point of 4 ½ years’ imprisonment. I reduce it by one-third discount because of his plea of guilty. There are no other mitigating factors. The sentence is 3 years.