HKSAR v. KWOK WAI YIP

 DCCC1214/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1214 OF 2007

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Reasons for Sentence

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1.  Defendant, you pleaded guilty to three offences of wounding with intent, each contrary to section 17(a) of the Offences against the Person Ordinance, Cap.212, and to one offence of failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap.221.

2.  In respect of three offences of wounding with intent, you pleaded not guilty and they were ordered to be left on file not to be proceeded with without the leave of this court or the Court of Appeal.

3.  You admitted the brief facts and you were convicted on the four offences.

4.  The amended brief facts in respect of those offences were as follows.

5.  At around 11.30 pm on 28 August 2006, Wong Tze-kin, PW1, Khamiam Panya, PW2, Leung Kin-chong, PW3, Lau Yau-man, P4, Tsoi Pak-lam, PW5, and Leung Wai-yung, P6, were inside the TV room with other boys at the Dawn Society, Ground Floor, Lee Tsui House, at Wan Tsui Estate, Chai Wan.

6.  While they were chatting they heard people outside yelling, and PW1 went outside and saw you with eight to nine other unknown males at the entrance to the premises. You and the other unknown males all held beef knives. You asked PW1 to come out and chat, but PW1 declined and stayed inside the premises. At this juncture you and the others forced their way into the premises.

7.  Inside the premises, you and two unknown males chopped PW1. PW1 ran to the TV room, went inside and closed the door. He and PW3 attempted to stop you and the other men from entering the TV room by standing behind the door. However, after a short while, you and the others forced their way in and chopped whoever they saw in the room. After chopping PW1 to PW3, you and the others fled. The police were called.

8.  As a result of the attack, PW1 to PW3 sustained the following injuries:

(1) PW1, cut wounds to the forearms, his left leg and right side of his head.  There was an abrasion over the abdominal wall.  He was admitted to hospital for three days.

(2) PW2, cut wounds to the left hand, left arm and left upper back. He was admitted to hospital overnight.

(3) PW3, a 7-centimetre long deep chop wound with muscle exposed to the right thigh, a 1.5 centimetre wound to the left shoulder, and a small chop wound over the right knee; also two 1.5 centimetre wounds to his left palm.  He was admitted to hospital overnight also.

9.  On 12 April 2007 you were arrested and cautioned. You were positively identified at an ID parade by PW1 and PW4.

10.  On 30 July 2008 in the District Court you went to trial. After PW1 gave his evidence, you fled to China. A warrant of arrest was issued. On 26 January 2010 you were arrested at Lok Ma Chau upon returning to Hong Kong.

11.  You admitted to nine previous convictions, in fact according to my calculations there are actually 11, one of which involved violence.

12.  On the day of plea, Mr Davis entered mitigation on your behalf, and in view of what was said, I decided that a probation officer’s background report would assist everyone, especially as I was informed that you had suffered from mental problems in the past. That report in fact confirmed that, and that led me to the conclusion that we should look at two psychiatric reports prior to sentence.

13.  Those reports are now before the court, have been considered by myself and accepted by you, subject to one correction over the admission of the offence.

14.  At this stage you are deemed not to be in need of psychiatric in-patient care.

15.  Mr Davis, on your behalf, entered further mitigation. Mr Davis told me that you had originally absconded and gone to the Mainland out of fear but you had returned of your own volition and pleaded guilty.

16.  Mr Davis realistically acknowledged the seriousness of these offences. He informed me that it arose out of a dispute between two gangs, the victims were not innocent bystanders attacked without reason, and despite what was said in one of the psychiatric reports, you fully did accept the part you had played.

17.  I am told that you are remorseful and determined to turn over a new leaf. I am told that you enjoy the support of your family, and indeed certain letters were produced. Your plea of guilty was stressed.

18.  On your behalf, Mr Davis asked me to be as lenient as possible. Referring to your record, whilst acknowledging it was not a good record, he pointed out that there was only one minor offence of violence in the past, and that was some time ago.

19.  I have referred to letters that were produced and he took through those letters.

20.  The prosecution produced before me the authority of HKSAR v Lo Shiu Wah, CACC399/1999. In that case, it was said it was perfectly proper not to offer the full one-third discount for a plea of guilty where the defendant had absconded. Mr Davis realistically and sensibly did not seek to argue against that position.

21.  I turn now to the sentence.

22.  You have pleaded guilty to Charges 1 to 3, and these are very serious offences indeed. These are armed assaults whereby the three victims who appeared to be youths were chopped, injured and, to various degrees in each, hospitalised for short periods. It is fortune indeed that none appear to suffer long-term injury, and all appear to be fully recovered.

23.  I do accept this was not an unprovoked attack but a revenge attack by one gang on another. Indeed, Mr Davis tells me that elements of the victimised gang are now serving terms of imprisonment relating to other offences, and I have no reason to doubt that. The point is not to justify what you have done, but it is that these were not innocent persons who were attacked by a gang of armed thugs, and whilst your actions cannot be justified in this regard, it does perhaps place them in context and explains the reason for the attack.

24.  I also accept, looking at your record and the contents of the reports, that you are not a man of habitual violence. The one offence is some 17 years ago. I also accept that having absconded out of fear that you have returned of your own volition to face up to your responsibilities and entered pleas of guilty. However, I have to tell you that the court will not tolerate such acts of violence where weapons are employed. The fact that the victims were not more seriously injured is, in my opinion, entirely fortuitous.

25.  Your fleeing from the trial does you no credit at all, but your return perhaps does restore some.

26.  I have taken into account all the mitigation laid before me, the contents of the reports that I have read, the fact of your family support, and the contents of the letters. Also of course I have had to take into account the nature and facts of the charges.

27.  It seems to me whilst Charges 1 to 3 are separate offences they are really in reality one course of conduct, a course of conduct that had three victims.

28.  I take as a starting point 3 years’ imprisonment. The discount that you will enjoy will be 25 per cent, not one-third, in view of your absconding in the course of the trial.

29.  Therefore, on Charges 1 to 3 you will go to prison for 27 months concurrent, that is 2 years and 3 months.

30.  In respect of the charge of absconding, I take as a starting point 6 months’ imprisonment. In my opinion, this is particularly serious as the trial had actually started. In that case, I will allow you the full one-third discount. Therefore you will go to prison for a period of 4 months on that charge. That period of 4 months will be served consecutively to the 2 years and 3 months in the first two charges.

31.  To sum up, you therefore will go to prison for a total of 31 months, that is 2 years and 7 months. As you are aware no doubt, the time spent on remand will count towards that.