HKSAR v. Ng Tak Po

DCCC 566/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 566 OF 2017

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REASONS FOR SENTENCE

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1.The defendant is convicted upon his own pleas of two charges: Charge 1 is wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212; Charge 2 is claiming to be a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap 151.

The admitted facts

2.At around 11 am on 2 February 2017, Fung Chau Cheung (PW1) went to Wah Sin House, Wah Kwai Estate, Aberdeen, to look for his friend.  When he was waiting outside Room 113, defendant, whom PW1 had known since childhood, dashed towards him and attacked PW1’s head with a metal ruler (about 1½ feet long) two or three times.  PW1 tried to ward him off, but defendant still hit him 10-odd times before PW1 managed to run away.  In the course of the attack, the defendant told PW1 he was “Yan Cha Po（人渣寶）” of “Wo Hop To（和合桃）”.

3.PW1 made a report to the police and went to the hospital for treatment. Upon examination he was found to have two 6-cm lacerations on his scalp, one 1-cm laceration on his left ear, abrasion on his left upper limb and tenderness on both upper limbs.  He was given 12 stitches on the scalp and was discharged from the hospital after two days.

4.The next day (that is, 3 February 2017), the defendant was arrested. Under caution, defendant admitted that he had attacked Ar Cheung (that is, PW1) the day before with a metal ruler because Ar Cheung had previously been sarcastic to him.  He also admitted saying to Ar Cheung that he was “Wo Hop To（和合桃）”.  He said he had thrown away the metal ruler.

5.In the cautioned record of interview, defendant further admitted that he and Ar Cheung had known each other since primary school but later they had animosity towards each other.  He said Ar Cheung had said something sarcastic to him a few weeks ago.  When he learnt that Ar Cheung was going to Wah Sin House, he wanted to teach Ar Cheung a lesson by hitting him.  He put on a pair of gloves, brought a metal ruler, waited for Ar Cheung at Wah Sin House, and hit Ar Cheung’s head with the metal ruler for a few times.  Ar Cheung tried to ward him off but he still hit him with the metal ruler for 10-odd times.  He said to Ar Cheung that he was “Yan Cha Po（人渣寶）” of “Wo Hop To（和合桃）”.

6.In the identification parade on 11 April 2017, PW1 positively identified defendant as the one who attacked him on 2 February 2017.

7.There was CCTV camera at Wah Sin House, which captured images of the defendant leaving the lift and taking out a metal ruler before the attack took place.

The defendant’s background

8.Defendant was born in 1970, single, educated up to Form 2, a casual transportation worker earning on average $9,000 a month. 

9.He has 30 previous criminal convictions entered on 21 occasions, starting from 1987 up to 2017, including six convictions of assault or assault occasioning actual bodily harm, and one of wounding 19, as well as one of being a member of a triad society.  The rest are mainly dangerous drug or theft-related convictions.

Mitigation

10.It is accepted that the biggest mitigation is the guilty pleas. 

11.A letter written by the defendant was submitted, where the defendant expressed remorse over his commission of the offences out of impulse and due to previous grudges, namely certain sarcastic words uttered by PW1, which he chose not to disclose.  He said in his letter that he has now learnt to let go and would apologise to PW1, whom he had known for over 30 years.  He expressed his wish to get along with PW1 peacefully.  He asked for a lenient sentence so that he could return home to take care of his mother. 

12.The defence counsel also invited the court to consider concurrent sentences.

Charge 1 - Wounding with intent

13.Wounding with intent is a serious offence which carries a maximum penalty of life imprisonment, sentencing of which is very much case-specific and there is no tariff.  In Secretary for Justice v Hau Ping Chuen [2008] 3 HKC 398, the Court of Appeal was referred to an earlier judgment in HKSAR v Tse Hok Lam [2005] HKLRD (Yrbk) 344, where the usual range of sentence for wounding with intent is described as being “3 to 12 years’ imprisonment”.  Of course, it is not to say that there may not be offences under section 17 of Cap 212 which call for higher or lower sentences than the usual range described in Tse Hok Lam if the circumstances are so unusual that they might merit sentences above or below the usual bracket (see paragraphs 15 to 16 of the judgment).

14.The defence counsel submitted three cases on wounding with intent and I have considered all of them. 

15.The first one is R v Ip Chong Fun & Anor, CACC 502/1995 (28 February 1996, unreported), where the 1st applicant was sentenced to 3½ years’ imprisonment for attacking, together with other men, the victim with a broken bottle, causing lacerations and profuse bleeding.

16.In HKSAR v Chan Man Chung, CACC 87/2000 (31 August 2000, unreported), the applicant with several others attacked the three victims with beef knives, causing serious chop wounds, and was sentenced to a total of 4½ years’ imprisonment for three counts of wounding with intent.

17.Lastly, in a District Court decision written in Chinese, HKSAR v Lee Chi Sut (transliteration), DCCC 843/2009, the defendant was sentenced to 3½ years’ imprisonment for wounding the victim with a kitchen knife, causing serious injuries on the chest, resulting in hospitalisation, some in the Intensive Care Unit, of around 10 days. 

18.The defence counsel submitted that those three cases were more serious than the present case as they involved more than one assailant or the injuries caused to the victims were more serious.

19.I agree that this case is not the most or the more serious type, but the circumstances here are serious in several aspects.  The assault was unprovoked and premeditated, as the defendant went over to a public place where he expected PW1 would appear, in order to attack him for allegedly some grudges a few weeks ago.  PW1 was attacked on his head by a metal ruler of about 1½ feet in length a few times before he tried to ward off, and the defendant kept hitting him for 10-odd times before PW1 managed to run away.

20.On the other hand, it is fortunate that, though there were lacerations on PW1’s scalp which required 12 stitches, he was discharged from hospital after two days and, as I was confirmed during sentencing hearing, that he suffered no permanent injury or disability and had fully recovered. 

21.I viewed the photographs of the injuries before sentencing and do not consider that they were very serious injuries.  I bear in mind the fact that the defendant was acting alone and the weapon used, namely a metal ruler, was not as lethal as other weapons like knives or choppers.  I also noted that, apart from tendering a timely plea of guilty, the defendant made full admissions as soon as he was arrested and in his subsequent police interview.

22.I, having considered all the circumstances, decided to adopt a starting point of 3 years’ imprisonment, reduce it by one-third to reflect the guilty plea and make it a final sentence of 2 years’ imprisonment for Charge 1.

Charge 2 - Claiming MOTS

23.For the offence of claiming to be a member of a triad society, the maximum penalty on the first conviction is a fine of $100,000 and 3 years’ imprisonment.  Again, there is no sentencing tariff but a short-term imprisonment is, at the very least, commonly imposed even for cases of minor nature.

24.In HKSAR v Choy Ka Fai & Ors [2011] 2 HKLRD 150, the Court of Appeal observed that the gravity of this offence depends on (1) in what circumstances does a person claim to be a member of a triad society; and (2) for what purpose is the claim to be a member of a triad society made (see paragraph 26 of the judgment). 

25.The Court of Appeal in Choy Ka Fai had considered another case, HKSAR v Lau Chi Hung, HCMA 1079/2004 (22 April 2005, unreported), where it was said in the latter case that a gentle claim made in a social context is to be reflected in the gentle sentence of 3 months, which is at the bottom end of the bracket for claiming to be a member of a triad society. 

26.In Choy Ka Fai, two defendants were claiming to be members of a triad society when introducing to and shaking hands with others in a pub.  The Court of Appeal opined that the term of 3 months’ imprisonment is sufficient to reflect the gravity of the crime.

27.In another case, HKSAR v Tse Yiu Ming, CACC 75/2007 (5 March 2008, unreported), submitted by the defence, the Court of Appeal observed that the usual sentence in the circumstances of a case of triad members bullying law-abiding citizens ranges from 12 to 18 months (see paragraph 1 and 28 of the judgment).

28.The claim of being a member of a triad society was made by the defendant during the course of the attack and the purpose of which must be, as fairly accepted by the defence, to intimidate or threaten PW1.  The circumstances here must be much more serious than those where the claim was made in a social context which warrant a sentence of 3 months at the bottom of the bracket.

29.I am of the view that the appropriate starting point here should be 12 months’ imprisonment.  Again, a one-third discount is to be given for the guilty plea.  The final sentence for Charge 2 should be 8 months’ imprisonment.

Disposal

30.The two offences are separate and distinct and, as a matter of principle, should not attract wholly concurrent sentences.

31.I, however, having taken into account the fact that Charge 2 was committed by the defendant when he was in the course of committing Charge 1, as well as the totality principle, would order 4 months of the sentence of Charge 2 to run consecutively to that of Charge 1. 

32.The total sentence which I impose on the defendant for the two charges would therefore be 2 years and 4 months’ imprisonment.

33.Those are the sentences.