HKSAR v. Leung Ka Sing

DCCC 380/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 380 OF 2017

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to Charge 2 and 3. He pleaded not guilty to Charge 1 and 4.  At the request of the prosecution and with the consent of the defence, these charges are left on court’s file and will not be proceeded with, without leave of the court.

2.Both Charge 2 and 3 are offences under Section 19 of the Offences against the Person Ordinance, Cap 212.

Summary of facts

3.On 24 May 2015, PW1 to 4 were with 10-odd friends celebrating PW4’s birthday in CEO Neway karaoke, located at MegaBox shopping mall. 

4.At about 1:30 a.m., PW1 and 4 had a heated argument with the defendant because the defendant had beaten up his own girlfriend, Ruby, who was also a friend of PW4.  During the argument, defendant claimed himself to be a member of a triad society.  Defendant threatened to call his protector and he left.

5.At about 2:16 a.m., the defendant returned to the karaoke with a group of eight males.  Inside Room M33, defendant and seven other males threw glass bottle and other items picked up from the table and the floor at them. 

6.PW1 and 2 were injured. 

7.While the attack was taking place, one male was waiting at the lift lobby and kept pressing the lift button to keep the lift door opened.  Two minutes later, defendant and the group left.

8.PW1 suffered four lacerations over the scalp and the longest one was 5 to 6 cm long.  He received a total of 18 stitches.  There was a haematoma over the occipital scalp.

9.PW2 suffered a 2-cm laceration over the frontal region of his face.  The wound was sutured.

10.The defendant was arrested on 23 April 2016 and rearrested on 8 March 2017.  He remained silent under both occasions.

11.On 9 March 2017, PW1 positively identified defendant as the assailant who claimed to be a triad member and also attacked him with glass bottle on 24 May 2015.

Previous conviction

12.The defendant had committed various offences between 2006 to 2014.  In 2006 they were offences of section 19 wounding and two charges of common assault.  In 2010, one charge of behaving disorderly in public place and one offence of resisting a police officer.  In 2012, they were driving-related offences.  His conviction in 2014 was resisting a police officer.  For all these offences, he received sentences from a fine to probation order and community service order.

Mitigation

13.Defendant is now 29, married in 2016.  He is a salesman by occupation, with a monthly income of about $12,000.  His parents were separated at his young age.  He was brought up by his grandparents.  His grandparent suffered from prostate cancer previously, but is now recovered.

14.As to the commission of the present offence, it was due to provocation and consumption of alcohol. 

15.The defendant’s wife, Ruby, attended the birthday party.  She became emotional and started to cry suddenly.  Defendant pushed her and asked her why she cried.  The others then shouted at the defendant and hit his head a few times, his wife pulled him out of the crowd, but two of them - one was PW1 - followed them and kept on shouting and swearing at the defendant.  He was being provoked by the shouting and swearing by PW1 and also he was drunk at the material time at the commission of the present offence.

16.He is now remorseful for what he had done to the victims and determines to stay clear from trouble.  He has been rehabilitated since the commission of the offence.  While he was in remand, he wrote a log book of about 200 pages of remorseful words to ask this court for leniency.  He is willing to pay compensation of $5,000 to each victim.

17.There are a number of letters from his relatives, family members, his wife, ex-employer, the priest and the church. All mitigated on his behalf and pleaded for leniency.

Sentence

18.When I pass sentence on the defendant, I bear in mind of all the mitigating factors advanced by the defence.  The maximum sentence of section 19 of the Offences against the Person Ordinance, Cap 212, is one of 3 years. 

19.The defence relied on the authority of HKSAR v Clifford Martin Frank, HCMA 1113/2001, and asked this court to impose a sentence of less than 18 months.

20.I disagree.  This case is far more serious. This case is a group attack on two defenceless victims inside a karaoke room. The reason for the attack was because PW1 and 4 had a heated argument with the defendant, as the defendant had beaten up his own girlfriend, Ruby.  Now we know that she is his wife, as they married last year.  However, the defendant was not happy.  He claimed himself to be a triad member, threatened to call his protector, and he left.  The defendant returned to the karaoke with a group of eight others.  The defendant knew where the victims were.  He summonsed more people to join in the attack was clearly to teach them a lesson. 

21.This kind of barbaric and violent behaviour was totally outrageous.  The defendant cannot expect leniency from this court.  A deterrent sentence is necessary. 

22.The assault was premeditated.  Apart from the defendant, there were seven others who took part in the assault of the two victims.  It was well planned.  Someone held the lift outside the room for the assailants to make easy escape from the scene. 

23.The assault took place inside a room which was an enclosed area.  They had no means to run away from the assailants.  As said before, the victims were totally defenceless. 

24.It also involved glass bottles.  When these glass bottles were thrown with force, they broke into pieces with sharp edges. That instantly became lethal weapons.  Any person with common sense would have known about it, including the defendant and the rest of the assailants. 

25.Both victims suffered injuries. 

26.PW1 suffered four lacerations over the scalp and the longest one was 5 to 6 cm - a total of 18 stitches - and a haematoma over the occipital scalp area. 

27.According to the updated medical report, PW1 complained of headache, dizziness, neck muscle stiffness and poor sleep after the assault.  The diagnosis was post-concussion syndrome.  The doctors said he was likely to suffer from organic brain syndrome.  That was a mental disorder due to brain damage and dysfunction.  He was referred to clinical psychologist assessment.  His latest attendance to see a psychologist was on 30 October 2017.  He defaulted the last session in October 2017.

28.As to PW2, he suffered 2-cm laceration over the frontal region of his face and his wound was sutured. 

29.One can see that PW1 suffered the most serious injuries.  Apart from physical wound, he also suffered from mental illness, which he needs to be treated by a psychologist.  His injury clearly has a bearing in passing sentence on the defendant.

30.The defendant is willing to pay compensation of $5,000 to each victim.  The prosecution does not seek application on their behalf.  PW1 had already applied to the Social Welfare Department’s Criminal and Law Enforcement Injuries Compensation Scheme.  That application will be dealt with after the completion of this case and the compensation order may complicate the assessment.

31.In such circumstances, this court does not make order as to compensation.

32.The defence also advanced in mitigation that the defendant has rehabilitated since the commission of the offence. 

33.However, the police could not locate the defendant until 23 April 2016.  He was then arrested and put on police bail. According to the criminal records summary, Part B, the defendant had absconded since May 2016 and was rearrested in March 2017.  That explained why it took the prosecution a long time to bring the defendant to court, and this was not the first time the defendant committed this kind of offence.  He had one previous similar in 2006.

34.There are a lot of mitigating letters before me.  Most of them said that the defendant came from a broken family.  His parents separated when he was a little boy.  He was raised by grandparents or relatives.  He lacked of family support during his tender age.

35.However, this is not a mitigating factor that the court should take into account. 

36.As to the fact that he was provoked by PW1’s swearing and shouting, again the retaliation by the defendant was totally disproportionate.  It was a nasty assault over a verbal dispute.  Violence of this kind must be met with deterrent sentence.

37.Taking into account that the defendant brought seven others along with him to participate in the attack of the two defenceless victims in an enclosed area in which they have no means of escape, glass bottles and other items were used, the victims suffered injuries on a vulnerable part of a human body, to this end, I consider that a starting point of 2 years and 3 months in Charge 2 and 2 years in Charge 2 is appropriate.

38.Discounted by one-third, it comes down to 18 months and 16 months respectively.

39.I order both sentences to run concurrently.