HKSAR v. Wong Chi Ho

DCCC 827/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 827 OF 2015

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Reasons for Sentence

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1.The defendant pleaded guilty to two charges of wounding contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212. Particulars of the two charges are that he on 2^nd June 2015 at Fu Hing Street, Sheung Shui, together with other persons unknown, unlawfully and maliciously wounded Wong Chi Hung (PW1) and Cheung Kwok Ming (PW2) respectively.

Outline of facts

2.At around 8:30pm on 2^nd June 2015, PW1 and PW2 were driving along Fu Hing Street, Sheung Shui in their respective vehicles one behind another when an unknown private car crashed into the rear of PW1’s car.

3.PW1 and PW2 got out of their cars and were then attacked by a group of 4 to 5 men. One of them had a chopper in his hand. PW1 and PW2 sustained chop wounds as a result of the attack.

4.The two victims were taken to hospital. PW1 suffered a 15cm linear chop wound at the right loin from the back to lateral abdominal wall. He discharged himself two days later against doctors’ advice. PW2 had an 8cm laceration wound on his left arm, exposing the triceps muscle. He was discharged two days later on 4^th June 2015.

5.The defendant was arrested at his home in Tin Ping Estate at around 3:50pm on 3^rd June 2015. He admitted under caution to punching the victims twice. The defendant pointed out the clothes that he was wearing at the time of the attack and they were seized.

6.CCTV footages of the area where the attack took place captured PW1, PW2 and the defendant in the vicinity.

Previous convictions

7.The defendant has 3 previous convictions. The first one was in 2004 for blackmail when he was sentenced to detention in a detention centre. The second conviction was for common assault 3 years later when he was ordered to perform community service. The latest conviction was for criminal damage in July 2013, when the defendant was fined $1,500 and ordered to pay compensation of $1,000.

Mitigation

8.The defendant is 27 years old, single. He was born and educated up to Form 3 level in Hong Kong. He has been selling vegetables for about 10 years, and was earning about $10,000 per month at the time of his arrest for the present offence. The defendant lives with his mother and elder sister in Sheung Shui, contributing about $4,000 each month towards the family.

9.Mr. Lee for the defendant made the following submission in mitigation.

10.On the day of the offence, the defendant received a call from a friend named ‘Ah Wah’ who told him about a dispute he had had with someone who was going out with ‘Ah Wah’s’ girlfriend.

11.The defendant then met up with Ah Wah in Fanling. He got into the car and it was the same car that was later crashed into the rear of PW1’s car. Ah Wah was the driver at the material time.

12.There were two others in Ah Wah’s car and they all got out after the collision. The defendant then saw Ah Wah argued with one of the victims. After a short time, Ah Wah shouted at the victims and started to attack them. The defendant joined in the attack and he kicked and punched the victims. The defendant was not the person who used the chopper on the victims. It is the defendant’s case that he did not know who the person using the chopper was.

13.When Ah Wah asked the defendant to meet up, the defendant knew that they will be beating someone up, but it was only after the attack had started that the defendant knew a chopper was being used in the attack.

14.It is Mr. Lee’s submission that it would appear the victims’ injuries were not very serious since they were both discharged just two days later. There is no evidence to suggest that the attack had anything to do with triad societies, the defendant committed the offence just to help out his friends. There was premeditation in the attack but the planning was done by Ah Wah and the defendant just followed his lead.

15.Mr. Lee referred to the case of HKSAR v Lai Hing Wan, CACC 363/2007. There the appellant used a glass bottle to attack the victim’s head multiple times. The attack on the victim involved about 10 other young people. The victim suffered some abrasive injuries and was discharged the same day after treatment. It is the victim’s belief that he was attacked because he had kept in touch with his former girlfriend, causing her new boyfriend to be jealous.

16.The 18 year old appellant pleaded guilty to one charge of wounding under section 19 of the Offences Against the Person Ordinance and was sentenced to 14 months’ imprisonment. He was also ordered to compensate the victim $3,000. He appealed against the sentence imposed.

17.The appellant had previous convictions for wounding, assault occasioning actual bodily harm, claiming to be member of a triad society, robbery and theft, all within months of his commission of the offence he was being sentenced for and was appealing against.

18.The Court of Appeal found that the appellant was an obviously violent young man with a triad background, committing multiple serious offences in the past 6 months. The Court found that there was premeditation in the commission of the offence, noted that the attack involved some 10 accomplices. The victim was attacked over trivial matters and the appellant used a glass bottle to hit the head of the victim until the bottle broke and still he did not stop.

19.The Court of Appeal found that the starting point of 24 months’ imprisonment was not excessive and also upheld the final sentence of 14 months’ imprisonment. The Court then moved on to consider the principle of totality in that case, which Mr. Lee did not seek to rely on in our present case.

Sentence

20.The maximum sentence on conviction upon indictment for the offence of wounding under section 19 is that of 3 years’ imprisonment.

21.The attacks were carried out by the defendant together  with at least 3 others. I find that the defendant must be sentenced upon the basis that he was jointly responsible for the attacks, and therefore, injuries suffered by the victims. It must, however, be taken into consideration that the defendant was not the person wielding the chopper or causing the chop wounds. The defendant only admitted to punching and kicking the victims a few times.

22.I find that the attack was premeditated. I take into consideration that it was not the defendant who had planned the attack, and that he was not the person who drove the vehicle into PW1’s car. I accept Mr. Lee’s submission that the defendant was just being foolishly and blindly loyal to his friend in agreeing to take part in the attack.

23.The victims’ injuries read serious on paper, but the fact that the victims were discharged just two days after the attack must mean that they were not very serious. I have not been presented with evidence to suggest otherwise.

24.I note that the attack was by 4 people over 2 victims. It is a cowardly attack over some trivial matter.

25.Taking into consideration the maximum sentence, the case referred to me by Mr. Lee and the circumstances of the attack, I find that a proper starting point for each of the two offence is that of 18 months’ imprisonment.

26.I find that there are no mitigating factors apart from the defendant’s guilty plea.

27.I do not find the criminal conviction record of the defendant an aggravating factor. 

28.The defendant is granted the usual one-third discount for his guilty plea and sentenced to 12 months’ imprisonment on each of charge 1 and charge 2.

Totality

29.Although the attacks took place at the same time and location and by the same attackers, there are in fact two victims who each suffered injuries. The defendant must suffer the consequences of his decision to attack two different people.

30.I order 3 months of the sentence in charge 2 be served consecutively to the 12 months sentence in charge 1, the balance to be served concurrently. The final sentence for both charges is therefore that of 15 months’ imprisonment.