HKSAR v. Chan Yiu Ming

DCCC 483, 553 & 953/2015(A) (Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS. 483, 553 & 953 OF 2015(A)

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Reasons for Sentence

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Charges and facts

1.The Defendant pleads guilty to Acting as a member of a triad society (1^st Charge) and Failing to surrender to custody without reasonable cause (2^nd Charge). 

Background

2.PC 9108 (PW1) was deployed to infiltrate into different triad societies in the Yuen Long area between July 2013 and 24th January 2015. In July 2013 PW 1 started working at M1 Bar, located at Shui Che Kwun Street, Yuen Long. In around November 2014, he worked at another M1 Bar, located at Yau San Street, Yuen Long (“the Pub”).

3.On 24th January 2015, the operation turned overt and various persons, including the Defendant, was arrested and cautioned. In the subsequent identification parades, PW1 identified the Defendant.  

1^st Charge

4.At around 5:15 a.m. on 29th December 2014, a group of males, including the Defendant, went to the Pub together and one of the males named Ah Fei asked PW1 to serve them. Ah Fei told PW1 that they would like to hang out at the counter. Afterwards, when the group of males was about to order drinks, the manager of the Pub switched on the lights and turned off the music as the Pub would soon be closed.

5.One of the males named Fui Fui was dissatisfied with the manager. While expressing his discontent to the manager, he claimed to be member of Wo Shing Wo. PW1 tried to calm Fui Fui down and said he would get them the drinks they wanted. Fui Fui then calmed down. Later, PW1 served the group of males their drinks.

6.Half an hour later, whilst the group of males was still having drinks at the Pub, the manager switched on all the lights of the Pub again. The manager told them to settle the bill and leave the Pub once they finished their drinks. Fui Fui then swore at the manager. Afterwards, Fui Fui told the group of males, including the Defendant, to do something.

7.Upon hearing Fui Fui's instructions, the Defendant and the rest of the males started yelling aloud. Then, the Defendant stood on a table and threw a beer bottle onto the floor. At the same time, the rest of the males continued yelling and swearing. After a while, the manager asked Fui Fui to calm the Defendant and others down as their behaviour had scared other customers of the Pub. Then, Fui Fui paid the bill and they left the Pub.

8.At all material times, Shing Wo, also known as Wo Shing Wo, was a known triad society in Hong Kong.  The Defendant acted as a triad member. 

2^nd Charge

9.On 22nd December 2016, the Defendant appeared in the District Court in a criminal case against him. A pre-trial review was set down for 24th March 2016 and the trial of the case was set down for 11th April 2016. The Defendant was granted bail by the judge up to 24th March 2016 for the said pre-trial review. However, the Defendant was absent at the said pre-trial review.  A warrant of arrest was therefore issued against him.

10.At around 12:09 a.m. on 8th February 2017, the Defendant was intercepted in Tin Yan Estate, Hong Kong.  He was then arrested. 

Personal background and mitigation

11.The Defendant is 24 years of age, of F. 1 education level.  He was a kitchen worker at the time of arrest.  He had 3 convictions for assault occasioning actual bodily harm before the present case.  He was convicted after trial of another assault occasioning actual bodily harm as a separate charge in the present case, sentenced to 33 months in his absence. 

12.There were 2 co-defendants for the charge of acting as triad members based on the same facts of the present case sentenced in the magistrates’ court.  The starting point adopted was 18 months, then reduced to 12 months for the guilty plea.  There was no appeal. 

13.Mr. Chan relies on the case of HKSAR v Wong Sing Chi & Others CACC 245/1999 to argue that the starting point of 18 months for the charge of acting as a triad member is too high.  That case relates to a group of triad followers summoned to settlement talks not resulting in actual violence.  The starting point was 15 months for the officer and 9 months for the followers. 

Sentencing this Defendant

14.I regard 18 months as the proper starting point as there is verbal confrontation followed by actual violence in the present case.  The broken beer bottle or its glass fragments can be a dangerous weapon to escalate the violence.  I give a one-third discount for the timely plea of guilty.  The sentence is 12 months for the 1^st Charge. 

15.I take 6 months as the starting point for the 2^nd Charge.  I give a one-third discount for the timely plea of guilty.  The sentence is 4 months for the 2^nd Charge. 

16.I have considered totality between the 2 charges but decided to order wholly consecutive sentences to drive home the message that the surrender to custody is an important part of the judicial process not to be made light of. 

17.The 33 months the Defendant is now serving relates to his assault of a victim on a date subsequent to the present offence at the same M1 Bar together with other assailants. 

18.Out of totality, I order 6 months of the 1^st Charge and 2 months of the 2^nd Charge here to be concurrent with the 33 months.