HKSAR v. Wong Pui Nam, Ryan and Another

DCCC 486/2018

[2019] HKDC 425

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 486 OF 2018

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REASONS FOR SENTENCE

1.The defendants stand convicted after trial of one joint charge of wounding Ma Cheng Kan, contrary to section 19 of the Offences against the Person Ordinance[1] (charge 1) and one joint charge of assaulting Ma Pok Man, Kenneth thereby occasioning him actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance (charge 2).

2.Full particulars of the offences are set out in my verdict handed down on 27 March 2019.  In summary Ma Cheng Kan is the grandfather of Ma Pok Man, Kenneth and the father-in-law of Ma Mei Ling, the mother of Kenneth Ma.  The grandfather was born in 1936.  Kenneth Ma is 24. 

3.The Ma family resided at Rooms 1531 and 1532 on the 15th floor of Lei Yee House in Ap Lei Chau.  Kenneth Ma lived in Room 1532 together with his mother and father and younger brother.  The grandfather lived together with the grandmother in Room 1531. 

4.At around 7:45 p.m. on 10 May 2017 Kenneth Ma, his mother and grandparents were having dinner together in Room 1531 when they heard the sound of banging on the door of Room 1532 and someone saying “Ma Yuk Sang, come out and repay money, don’t hide”.  This was said more than once. 

5.Ma Yuk Sang is the paternal uncle of Kenneth Ma.  Kenneth Ma said that since his birth his uncle never lived there.

6.Since the banging went on for quite a long time the grandfather opened the door to see what happened.  The defendants were outside.  The mother, who was standing behind her father-in-law, described the defendants as fierce and that she was afraid. 

7.Kenneth Ma turned on the camera on his mobile phone to video record the incident.  

8.The grandfather went out to ask what happened.  The defendants told the grandfather that they were looking for Ma Yuk Sang to collect a debt.  The grandfather told them Ma Yuk Sang had not lived there for a long, long time and asked them to leave.

9.When the defendants realised that Kenneth Ma was video recording they asked him what he was doing.  One of the defendants dashed forward to grab his phone.  Since the grandfather was standing in front of Kenneth Ma he blocked their way.  The defendants scolded Kenneth Ma with abusive language.  One of the defendants also used a pile of debt collection papers he was holding to hit Kenneth Ma on his head.  

10.Although the grandfather was blocking their way one of the defendants caught hold of Kenneth Ma and grabbed him out of the room.  Very quickly Kenneth Ma was struck once on his eye.  Kenneth Ma right away felt dizzy and was hit again.  Kenneth Ma was hit at least once by both defendants. 

11.Kenneth Ma fell onto the ground and was pulled once causing injuries on his leg. After about ten seconds Kenneth Ma opened his eyes and saw his grandfather trying to stop the defendants hitting him.   

12.Kenneth Ma saw one of the defendants use his fists to hit his grandfather two to three times on his right eye and nose, one blow causing his grandfather to fall onto the ground.  The other defendant moved over to help hitting the grandfather but was stopped before he could hit the grandfather. 

13.The grandfather was bleeding at which time the defendants ran away.  Kenneth Ma used his mobile phone and called 999.  The police arrived later.  The defendants were arrested later that evening when they attended the Aberdeen police station. 

14.Kenneth Ma and his grandfather were sent to Queen Mary hospital.  The medical findings of the doctors and photographs of the injuries were admitted in evidence[2].  

15.The grandfather’s injuries include multiple lacerations over his right upper eyelid and the right cheek as shown in photographs 10, 12 & 37 and fracture of the right infraorbital floor with involvement of infraorbital foramen and the right lateral maxillary wall, which are fractures below the right eye and to the right of the nose. 

16.Kenneth Ma’s injuries include abrasions over the right side of his forehead as shown in photographs 6, 33 & 34 and on the right side of his lower lip as shown in photographs 5 & 32.    

Criminal records

17.The defendants cannot be given credit for a clear record, both having previous convictions including convictions for offences of violence.   D1 was convicted of wounding in 2006 when he was 17.  D2 was convicted of common assault and wounding in 2013 and fighting in a public place in 2015. 

Mitigation

18.In passing sentence, I take into account everything said on behalf of the defendants by Mr Davies. 

19.D1, aged 30, is divorced and helps support his daughter, who is 6 and lives with his ex-wife.  D1 lives with his parents.  The mother has been diagnosed with cancer.  The father is a taxi driver.  D1 is the main breadwinner of the family. 

20.D2, aged 27, lives with his wife who is pregnant.  The expected date of confinement is in October.  D2 helps to look after his grandparents.

Sentence

21.Mr Davies emphasises this was a spontaneous attack when the defendants went to collect a genuine debt; that no weapons were used and that if the defendants had not gone to the police station they might not have been found.  Both offences arising out of the same incident Mr Davies asks for concurrent sentences.

22.There are no guidelines for offences of wounding contrary to section 19 of the Offences against the Person Ordinance or for assault occasioning actual bodily harm[3].

23.In my view deterrent sentences are required where debt collectors use violence when endeavouring to collect a debt, in particular where that violence is inflicted on family members who do not owe the money and especially when violence is inflicted on the elderly. 

24.I am satisfied the appropriate sentence after trial for wounding the grandfather is 1 year and 9 months’ imprisonment and for assaulting Kenneth Ma is 9 months’ imprisonment.

Offer to plead guilty.

25.Prior to trial being set down the defence wrote to the Department of Justice on 6 August 2018 offering to plead guilty to the lesser offence of section 19 wounding and to assault occasioning actual bodily harm.  The offer was rejected by the Department of Justice. 

26.Where an offer to plead guilty to a lesser offence is rejected by the prosecution a court may take this into account as a mitigating factor where the conviction matches the offer which was made[4]. The amount of discount is related to the way in which the trial is conducted. 

27.The case was set down for trial on 20 September 2018 when the defendants indicated pleas of not guilty to both charges.  On 21 February 2019, the first day of trial, the defendants pleaded not guilty to both charges.  No pleas to section 19 wounding were entered.  The defendants contested the trial on the basis that they did not assault either the grandfather or Kenneth Ma.

28.Taking into account that the defendants offered to plead guilty to the lesser offence of section 19 wounding for which they were convicted, I am satisfied that a reduction in sentence of 3 months to 18 months’ imprisonment is appropriate.  The defendants having been charged and convicted of assault occasioning actual bodily harm, I am satisfied no reduction is appropriate for charge 2. 

Delay

29.The defendants were charged on 16 May 2018 just over one year after they were arrested which Mr Davies submits was an extraordinary delay.

30.Where there has been unreasonable delay in bringing an offender to justice this is a mitigating factor which may be taken into account in sentence.  All the circumstances must be looked at including whether the offender has acknowledged guilt; where the delay has given the offender the opportunity to rehabilitate himself and whether the time taken to bring the case to court was longer than necessary[5].

31.Mr Tracy has submitted to court a chronology explaining why the prosecution took just over one year to charge the defendants.  In summary this was primarily due to the medical condition of the grandfather.

32.I am satisfied no further reduction is to be given for the time taken to charge the defendants and bring the case to court. 

Totality

33.I am satisfied that consecutive sentences are appropriate to reflect that two persons were attacked and injured. 

34.I am satisfied that a total sentence of 1 year and 9 months’ imprisonment properly reflects the overall criminal culpability on the two charges and takes into account the personal circumstances of D1 and D2 and the seriousness of the offences[6].  

Sentence

35.D1 and D2 are convicted and sentenced as follows:

Charge 1 – 1 year and 6 months’ imprisonment; and

Charge 2 – 9 months’ imprisonment, 3 months consecutive and 6 months concurrent to charge 1.