HKSAR v. HO LIK WUN AND ANOTHER

DCCC 880/2019

[2020] HKDC 825

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 880 OF 2019

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REASONS FOR SENTENCE

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The Charges and Pleas

1.  Ho Lik Wun (D1) and Lo Kin Wa (D2) appeared before me facing the following charges:-

(i) Charge 1 (against both accused) – Conspiracy to cause grievous bodily harm with intent, 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;

(ii) Charge 2 (against D1 only) – Driving without a valid driving licence, contrary to section 42(1) and (4) of the Road Traffic Ordinance, Cap 374;

(iii) Amended Charge 3 (against D1 only) – Driving a conveyance without authority, contrary to section 14(1) of the Theft Ordinance, Cap 210;

(iv) Amended Charge 4 (against D2 only) - Driving a conveyance without authority, contrary to section 14(1) of the Theft Ordinance, Cap 210;

(v) Charge 5 (against D1 only) – Using a motor vehicle without third party insurance, contrary to section 4(1) and 2(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272; and

(vi) Charge 6 (against D2 only) – Using a motor vehicle without third party insurance, contrary to section 4(1) and 2(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272.

2.  All 6 offences took place on 29 August 2019.  Charge 1 concerned a targeted victim Mr Sham Tsz-kit (PW2).  Charges 2 to 4 concerned the driving and using of a white Toyota Mark X private car by D1 and D2.

3.  D1 pleaded not guilty to Charges 1 and 3.  He pleaded guilty to Charges 2 and 5 and admitted the facts pertaining to those 2 charges.  I convicted D1 of Charges 2 and 5 on his own pleas of guilty and admission.  I convicted D1 of Charge 1 and 3 after trial.

4.  D2 pleaded guilty to Charges 1, 4 and 6 and admitted the facts pertaining to the three charges he pleaded guilty to.  I convicted D2 of Charges 1, 4 and 6 on his own pleas of guilty and admission.

The Facts

5.  Charge 1 concerned a conspiracy “to unlawfully and maliciously cause grievous bodily harm to Sham Tsz Kit with intent to do him grievous bodily harm”.  A stolen car, i.e. the white Toyota Mark X private car was used and driven by D1 and D2, hence Charges 3 to 6.  D1 was aged a little over 15 ½ at the time and he did not have a valid driving licence, hence Charge 2.

6.  I sentence D1 on the factual basis of: (1) the Summary of Facts pertaining to Charges 2 and 5; and (2) the facts found by this court in the judgment dated 31 August 2020.  I found that D1 conspired with D2 and other unknown persons including the 2 assailants to unlawfully and maliciously cause grievous bodily harm to PW2 with intent to do PW2 grievous bodily harm.  I found also that when D1 drove the Toyota Mark X on 29^th August 2019, he knew that it was a car that had been taken without the consent of the owner or other lawful authority.

7.  I sentence D2 on the factual basis of the Re-Amended Summary of Facts dated 31 August 2020 admitted by him, which reveals the following:-

Charge 1

8.  Mr Lo Kwok Wai (PW1) and PW2 were friends.  PW2 was an active political figure.

9.  On 29 August 2019, after attending a public event in the vicinity of Nathan Road and Jordan Road, Kowloon, PW1 and PW2, together with 3 friends of theirs, went to a nearby restaurant, i.e. Via Restaurant, for lunch at about 12:15 pm that day.  They were seated at a table near the back of the restaurant.

10.  At about 20 minutes later, Madam Chan Mei Wan saw D1 loitering outside the Restaurant and looking into the Restaurant from time to time.  Madam Chan thought D1 was filming a photo of her and thus she took 2 photos of D1 with her phone.  Madam Chan saw D1 walked away towards Jordan Road.  At around 12:36 pm, Madam Chan entered the Restaurant with another female and gave her phone to the female.  The female showed the 2 photos in Madam Chan’s phone to PW2’s group to alert them to D1’s loitering outside the Restaurant.

11.  At about 12:50 pm, 2 non-ethnic Chinese men rushed into the Restaurant towards PW2’s table.  One of them was holding a baseball bat whilst the other was holding a beef knife.  The 2 men headed towards PW2 but PW1 stood between PW2 and the 2 men.  The one holding a baseball bat struck PW1’s forearm three times with the baseball bat, whilst the other man brandished the knife at PW1 and PW2 and struck a nearby table.  The 2 men then fled the Restaurant immediately.  The case was reported to the police.

12.  PW1 was sent for medical examination.  He sustained tenderness and swelling over his left forearm.  He was treated and discharged on the same day.  PW2 was not injured.

13.  Police investigations and examination of CCTV footage at various locations revealed, inter alia, the following:-

(i) On 29 August 2019, around 3 hours before the attack, D2 arrived on foot at an open-air carpark in Fu Hang Road, Lo Fu Han, Tuen Mun. D1 arrived in Lo Fu Hang by taxi shortly after;

(ii) D2 then drove D1 and the 2 assailants in a white Toyota Mark X, displaying a license plate number of “WG 7983” (the “Toyota Mark X”) from Lo Fu Hang to Jordan, Kowloon;

(iii) About an hour before the above attack, D1 tailed PW2 in the vicinity of Joran and the Restaurant. D1 was reporting the whereabouts of PW2 and himself to D2 at the material times via WeChat messaging in the form of text and audio messages, photo and video;

(iv) Around 6 minutes before the attack, the Toyota Mark X arrived at Jordon Road near the Restaurant. D1 walked towards the car from the direction of the Restaurant. D2 got out from the driver’s seat of the car and walked away towards Tak Hing Street, while D1 hopped into the driver’s seat and drove the car away;

(v) At about 12:51 pm, the Toyota Mark X arrived at Tak Hing Street where the 2 assailants got out of the car. They were masked and holding a baseball bat and a beef knife respectively;

(vi) The two assailants dashed into the restaurant at about 12:51 pm and hopped back onto the Toyota Mark X at about 12:52 pm. The car then left the scene and arrived at Lo Fu Hang at about 1:22 pm;

(vii) At about 1:12 pm, D2 boarded a taxi at Tak Hing Street and eventually arrived at Lo Fu Hang at about 1:45 pm. D2 then boarded a private car with registration plate “US 6090” and left Lo Fu Hang.

14.  On 8 September 2019, D2 was arrested.  Under caution, he stated that he had received a monetary reward for driving, but he did not attack anyone.  In a subsequent cautioned video-recorded interview conducted with D2 on the same day, he was shown photographs extracted from relevant CCTV footages.  He identified himself to be the person getting out of the Toyota Mark X and swapping positions with D1 on Nathan Road near Tak Hing Street on 29 August 2019.  D2 further stated under caution, inter alia, that:-

(i) Around mid-August, an Indian Male “Boy” recruited him to act as the driver in an attack against one male “Kit”. “Boy” had provided him with a photo of “kit” and paid him a monetary reward of HK$5,000;

(ii) He knew that someone in Tuen Mun had placed a HK$2 million bounty for crippling “Kit” ( “…打阿杰的原因就係屯門有香港人要打跛阿杰隻腳，酬勞有二百萬。”);

(iii) Later, “Boy” told him to find more help in the attack. D2 thus recruited D1;

(iv) As per the instructions of “Boy”, D2 picked up D1, “Boy” and his friend at Lo Fu Hang to Jordan. D2 dropped off D1 near Yue Hwa Chinese Products Emporium;

(v) After he had swapped driving positions with D1, he wandered around Tak Hing Street until the attack was over; and

(vi) He then took a taxi back to Lo Fu Hang to join the others.

15.  D2 admitted that at all material times, he conspired with other unknown persons including the 2 assailants to unlawfully and maliciously cause grievous bodily harm to PW2 with intent to do PW2 grievous bodily harm.

Charges 4 and 6

16.  Mr Chan Yuk Chun was the registered owner of the white Toyota Mark X in question.  The registration number of the car was PX 3354.  He reported the loss of the car on 12 June 2019.  On 30 August 2019, the car was recovered by the police at Lo Fu Hang.  D2 drove the car on 29^th August 2019.  Mr Chan did not know D1, D2 or any of the assailants.

17.  At all material times, D2 drove and/or used the Toyota Mark X knowing that it had been taken without the consent of the owner or other lawful authority, and without valid third party insurance.

Background Information of D1 and D2

D1

18.  D1 was born in 2003, he was 15 years and 10 months old in August 2019 and is now 16.

19.  D1 was born in Hong Kong.  He had a hitherto clear record.  He resided with his parents and a younger sister in Tuen Mun before his remand.  He was educated up to Form 1.

D2

20.  D2 was born in 1990, he was 29 years old in August 2019 and is now 30.  He resided with his mother and a 6 years old daughter in Tuen Mun before his remand.  He was educated up to Form 3.  He worked as a salesman at the time of the offence.

21.  D2 has 9 previous convictions, including one for “Robbery”, 3 for “Assault Occasioning Actual Bodily Harm”, one for “Conspiracy to Blackmail”, and one for “Criminal Damage”.  His first conviction was in 2005 and his last conviction was in 2015.

22.  The Traffic Conviction Record of D2 shows that he had a total of 7 traffic convictions recorded against him since 2012.

The Pre-sentencing Report of D1

23.  I called for a Training Centre Report/ Detention Centre Suitability Report for D1 before sentence.  D1 is mentally and physically fit for detention in a Detention Centre or a Training Centre, there are places available for him.  Mr Lo, the maker of the report, considers D1 more suitable for detention in a Detention Centre.

24.  The report shows that D1’s parents were permissive in parenting and as a result family supervision and guidance on D1 was inadequate.  D1 had no interest in schooling and he discontinued schooling in 2018.  Since then, he only went to work occasionally and spent most of his time in merriment together with some undesirable peers.  Owing to his greediness for easy money, he committed the 4 offences in the present case. Whilst on bail, he adopted a loafing lifestyle.  Worst still, he was arrested for “Driving without a licence” on 7 July 2020 and “Possession of dangerous drug” on 22 July 2020. During his remand period, D1 violated the institutional rules once as he was involved in a fight with another person in custody on 1 August 2020. 

Mitigation

25.  I have considered the detailed written mitigation submissions of Mr Yuen for D1 and Mr Davies for D2. 

26.  I have considered the mitigation letters from D2’s family members and fiancée.

27.  I have also considered the sentencing authorities placed before me by counsel.

A Consideration of the Submissions

28.  The offences committed by D1 and D2 were serious and evil.  The defendants agreed to cause grievous bodily harm on PW2 for money. 

29.  I am aware that the conspiracy to cause grievous bodily harm was halted; PW2 was not injured and PW1 received only minor injuries.  The assailants failed to cause any grievous bodily harm to PW2 only because of the bravery of PW1.  But for PW1’s intervention, the assailants would have caused very serious injury to PW2 with the baseball bat and/or the beef knife.

30.  The conspiracy involved much planning, extreme care about minute details was taken: eg transport to and from the scene was arranged, a false number plate was used for the Toyota Mark X, face masks and weapons were carried and used, PW2 was tailed before the attack.

31.  In my judgment, the fact that D2 recruited D1, who was only 15 years and 10 months old at the time, to join the conspiracy added much to his culpability for Charge 1.

32.  Another aggravating factor is that the conspiracy concerned a planned attack on an active political figure.  At a time when the society is deeply divided, violent offence with a political motivation must be strongly deterred.  One must not resort to violence to resolve political conflicts/disputes, whatever political ideology one stands for and embraces.

33.  D1 and D2 might be politically insensitive and they committed the offences solely for money, but as the Court of Appeal said in the judgment of HKSAR v Yip Kim Wah [2019] 3 HKC 121:-

“66. The true culpability of the hired hand, we think, rests squarely in the fact that he had lent himself unquestionably to the use of his master, so that he must bear the same level of blame that the offence rightly engenders.”

34.  In my judgment, there is sufficient evidence to conclude that the mastermind behind the conspiracy orchestrated the attack on PW2 because of the latter’s role or work as an active political figure.  Hired hands like D1 and D2 must bear the same level of culpability as the mastermind.

35.  The offences of “Driving a conveyance taken without authority” and “Using a motor vehicle without third party insurance” committed by D1 and D2 were serious given the time and distance of the journeys involved.  The people on board the Toyota Mark X as well as other road users were exposed to uninsured peril in the event of an accident.  In the case of D1, he was only 15 years and 10 months old at the time and he did not have a valid driving licence.

36.  Mr Ma for the Prosecution drew my attention to the following sentencing authorities on “extreme youth”:-

(1) AG v Yau Wing Hong [1995] 3 HKC 95, 98E-G: Any person older than the respondent who was aged just over 15 at the time of the offence in AG v Li Chi-ho and Others [1987] HKLR 1233 cannot plead “extreme youth” as a mitigating factor;

(2) HKSAR v Law Ka Kit & Ors [2003] 2 HKC 178, 186H and 188A: D4 who was 15 years and 6 months old at the time of the offence did not fall within “extreme youth”; and

(3) HKSAR v Tai Man Yu and Another (unrep., CACC 164/2004, 30 August 2004), paras 15-16: The 2^nd Applicant who was 15 years and 11 months old at the time of the offence did not fall within “extreme youth”.

37.  D1 was born on 24 October 2003, he was 15 years and 10 months at the time.  He was educated up to Form 1 only.  I am aware that in the authorities placed before me by Mr Ma, young offenders of 15 years old were not accepted as “extreme youth”.  I am also aware that policy considerations require the imposition of substantial terms of imprisonment even upon young offenders if violence was used.  In the present case, I take into consideration D1 committed the offences under the instructions and influence of a much older man, i.e. D2.  I take also into consideration the fact that PW2, the targeted victim, was not injured at all and PW1 suffered only minor injuries.  As the Court of Appeal in Law Ka Kit observed at 186G “What is ‘extreme youth’ is not a matter of exact mathematics…”.  In HKSAR v Wong Tsz-hin [2013] 1 HKC 244, a 16 years old student who pleaded guilty to a robbery in the less serios category was adjudged to be more suitable for detention in a Training Centre than for imprisonment, as it was “..of importance that the applicant should be rehabilitated and a long term of imprisonment may not be the best answer for his rehabilitation.” 

38.  In the present case, bearing in mind the age of D1, what he did on 29 August 2019 and the fact that he was in the company and under the direction of a much older man, i.e. D2, I am prepared to accept D1 was of extreme youth at the time of the offence. 

39.  In my judgment, the desirability of rehabilitating a young offender like D1 in settings more conducive to rehabilitation outweighs the need for a term of imprisonment with a punitive effect.  In my judgment, in the present case, the rehabilitative approach should not give way to a punitive or deterrent sentence.

40.  Having regard to the nature of Charge 1 and the circumstances of the offence, a Detention Centre Order would be too lenient, I reject the recommendation of the report and Mr Yuen’s plea that D1 should be sentenced to a Detention Centre.

41.  In the end, for the reasons given, I adopt a rehabilitative approach in the sentencing of D1, and having regard to D1’s character, his previous conduct as revealed in his pre-sentencing report and the circumstances of the offences, in my judgment, it is expedient that D1 should undergo a period of training in a Training Centre for his reformation and for the prevention of crime.

42.  For the reasons given, on Charges 1, 2, 3 and 5, I make a Training Centre Order and order that D1 be detained in a Training Centre.

43.  For Charges 2, 3 and 5, I make an order that D1 be disqualified from driving and obtaining any driving licence for a period of 18 months.

44.  The culpability of D2 far exceeds that of D1.  It is reprehensible that D2 should recruit a young person like D1 to take part in the armed attack on PW2, worst still, he tasked D1 with the duty of driving a stolen vehicle, knowing (i) D1 did not have a driving licence given his obvious youth; and (ii) the use of the Toyota Mark X was not covered by third party insurance, thereby exposing other road users to uninsured peril.

45.  I reject the claim by D2 that he was recruited by “Boy”, i.e. one of the two assailants, to do the driving from Lo Fu Hang to Jordan.  It does not make sense that D2 was not required to do the more important work of driving the assailants back to Lo Fu Hang after the event, and it does not make sense that D2 was allowed to delegate the more important duty of driving the assailants back to Lo Fu Hang to D1 who obviously did not have a driving licence. Obviously D2 was the leader of the hit squad of 4 on 29 August 2019.

46.  In my judgment, given the extent of careful planning of Charge 1, i.e. the use of face masks and weapons, the use of a stolen vehicle with false number plate, the tailing of the targeted victim and the reconnaissance work by D1, and on the other hand, also bearing in mind PW2 was not injured, Charge 1 calls for an initial starting point of 4 years’ imprisonment. 

47.  Given the aggravating feature that Charge 1 concerned a planned attack on an active political figure, I take a higher starting point of 5 years’ imprisonment to deter any like minded from doing the same.

48.  The starting point for Charge 1 is further enhanced for 9 months for the reason that D2 recruited D1, who was under 16 at the time, to take part in the heinous crime.

49.  For the reasons given, I take 5 years and 9 months’ (69 months) as the starting point for Charge 1.

50.  D2 is given one third reduction for his timely plea, that would bring his sentence for Charge 1 down to 46 months.

51.  Apart from his guilty plea, I can see no further mitigating factors which can reduce the sentence of 46 months’ imprisonment.  I note what the family members and the fiancée said in their letters but the matters raised do not count as mitigating factor.

52.  I am aware also of the plea by PW1 that he does not want either of the defendants be punished heavily.  The forgiveness that PW1 is ready to give to the defendants should be contrasted with the evilness of the conspiracy.  I have considered the plea by PW1 but decided not to reduce the sentence any further.

53.  On Charge 1, I sentence D2 to 46 months’ imprisonment.

54.  On Charges 4 and 6, given the distance and time of the journey from Lo Fu Hang to Jordan, I take a starting point of 9 months for Charge 4 and 6.  D2 is given one third reduction for his timely plea.

55.  On Charge 4 and 6, I sentence D2 to 6 months’ imprisonment for each offence. 

56.  For Charges 4 and 6, I make an order that D2 be disqualified from driving and obtaining any driving licence for a period of 18 months.

Totality for D2’s Sentences

57.  Taking into consideration the totality principle, a total sentence of 46 months’ imprisonment should adequately reflect the overall culpability of the 3 offences committed by D2.  I order that the terms of imprisonment for Charges 1, 4 and 6 are to run concurrently with each other, making a total term of 46 months’ imprisonment.