HKSAR v. Cheng Man Kit

DCCC 160/2021

[2021] HKDC 660

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 160 OF 2021

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REASONS FOR SENTENCE

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The defendant pleaded guilty to 1 charge of "Common assault" (Charge 1); 1 charge of "Assault occasioning actual bodily harm" (Charge 2); 1 charge of "Criminal intimidation" (Charge 3); 1 charge of "False imprisonment" (Charge 4); 1 charge of "Theft" (Charge 5); 1 charge of "Possession of imitation firearms" (Charge 6); 1 charge of "Possession of arms without a licence" (Charge 7); 1 charge of "Possession of an imitation firearm at the time of committing an offence" (Charge 8); 1 charge of "Possession of prohibited weapons" (Charge 9) and 1 charge of "Possession of handcuffs and an offensive weapon" (Charge 10).

Summary of Facts

2.In April 2020, the defendant rented from Madam Yip (PW1) a container situated at DD 111, Lot 253SD, Chuk Hang Tsuen, Fan Kam Road, Pat Heung, Yuen Long ("the Unit").

3.As a result of certain tenancy disputes, PW1 evicted the defendant in August 2020.  He moved out on 23 August 2020, following which were disputes related to the refund of rental deposit.  The defendant developed grudges against PW1.

4.About 10:00 a.m. on 4 September 2020, when PW1 was showing a prospective tenant the Unit, the defendant appeared.  He pulled PW1's shoulder from behind.  As she turned around, he sprayed some liquid in her eyes and pushed her into the Unit.  This is Charge 1.

5.PW1 tried to escape from the Unit.  After running for about 20 metres, the defendant caught her. Outside the Unit, the defendant picked up a piece of brick from the ground and used it to hit PW1's head and face 2 to 3 times, causing her head to bleed and pain on her face.  He also hit PW1's right waist 2 to 3 times.  This is Charge 2.

6.The defendant then pointed a knife at PW1 and forced her to go inside the Unit.  PW1 was scared and complied.  On the way into the Unit, the defendant continued to point the knife at PW1.  This is Charge 3.  CCTV footage captured a female being dragged into the Unit.

7.PW1's relative Madam Tai (PW2), who was a resident in the vicinity of the Unit, heard some loud noise.  She came to the Unit to assist PW1.  PW2 saw the defendant pressing PW1 down and restraining her.  She also saw PW1's head bleeding.  The defendant told PW2 to leave immediately since it was none of her business.  PW2 went to seek help from PW1's family members.

8.Meanwhile, the defendant pushed PW1 down on the floor.  He took out a roll of adhesive tape from his rucksack and used it to seal PW1's mouth and to wrap around her head several times.  Afterwards, the defendant took out a pair of handcuffs from his rucksack to cuff PW1.  He also tied up her hands and legs with plastic strips.  PW1 tried to escape twice but the defendant prevented her from leaving.  This is Charge 4.

9.In the Unit, the defendant at one stage took out a baton and waved it at PW1.  He asked PW1 how much money she had at home.  He also asked her where her wallet and bank cards were.  PW1 said she only had $20,000 cash at home and did not have her wallet or bank cards with her.  Later on, when the defendant realized that other people in the vicinity were becoming aware of PW1's predicament, he unlocked the handcuffs and put them away.  He also took PW1's waist bag, which contained her iPhone (valued at $1,000), against her will.  This is Charge 5.  PW1 subsequently managed to cut off the plastic strips and freed herself.

10.As a result of the defendant's attack and violent treatment, PW1 sustained multiple injuries which included abrasion on her right scalp; swelling on her right face; bruising over her right jaw; bruises/redness on both wrists; and tenderness on her right back.

11.About 10:10 p.m. on 4 September 2020, the defendant was arrested by the Police at his home situated at House 26, DD 111, Lot 1209, Ha Che Tsuen, Fan Kam Road, Pat Heung, Yuen Long ("the House").  Upon a body search, PW1's mobile phone was found on the defendant.  PW1's waist bag was also found in the House.

12.The House was searched.  Amongst other things, 17 short air guns (Exhibits 32 to 43; 45 to 49) and 43 long air guns (Exhibits 63 to 74; 89 to 91; 92 to 118; 122) were found; this is Charge 6.   A crossbow with a draw weight of 21 kgs[1] (Exhibit 79) and 1 air gun capable of discharging a 0.177 calibre pellet with muzzle energy of 6.21 joules[2] (Exhibit 44) were found as well; this is Charge 7.

13.The Police also found 1 extendible baton (Exhibit 87) and 2 pairs of metal Chinese-style fighting iron (commonly known as "nunchaku"; collectively Exhibit 55) in the House; and another extendible baton (Exhibit 4) at the Unit.  This is Charge 9.  Both Exhibits 87 and 4 are operated by gravity and/or centrifugal force.

14.A bottle of chilli spray (Exhibit 22) and 2 pairs of metal handcuffs (Exhibits 20 and 21) were found at the House as well.  This is Charge 10.

15.In his video recorded interview, the defendant admitted, inter alia, that he went to the Unit in the morning on 4 September 2020 to wait for PW1 in order to get his rental deposit back.  He brought along one of the air guns found in the House (i.e. Exhibit 32) to scare PW1; this is Charge 8.  He sprayed the chilli solution (Exhibit 22), which he had made by mixing chilli juice with alcohol, in PW1's eyes and hit her head and shoulder with a piece of brick.  He also tied up PW1's hands and legs with plastic strips to prevent her from escaping.  He covered her mouth with adhesive tape.  He used one of the 2 pairs of handcuffs found in the House to cuff PW1.  He then took away PW1's waist bag which contained her mobile phone. He claimed that he had wanted to delete his contact information contained in PW1's phone.  Finally, the defendant admitted possession of all the weapons, arms and imitation firearms found by the Police in relation to Charges 6 to 10.

Mitigation

16.The defendant is 52 and has 2 conviction records, which included 3 "Theft" offences (all dated 1988) and 1 "Arson" offence, which he committed in March 2020.  He pleaded guilty to the "Arson" charge in late April 2021 and was sentenced to 36 months' imprisonment.  Defence counsel Mr. Yeung informed me that defendant is divorced and has a son (aged 20).  He was gainfully employed in the past as stated in his antecedents until he lost his job in 2019.

17.In mitigation, Mr. Yeung explained that the defendant was angry at PW1 in respect of their tenancy disputes as well as the non-return of his rental deposit.  Also, he believed that PW1 had used noxious substance to poison his cats.  Mr. Yeung submitted that the defendant is remorseful for his impulsiveness and what he has done.  Regarding the possession of toy guns, Mr. Yeung submitted that the defendant has a hobby of collecting model guns. He has taught kids how to build models as a volunteer.  He can tell a story about each gun in his collection.

Sentence

Charge 1

18.Spraying chilli solution in someone's eyes can cause infection or even permanent blindness. I adopt a starting point of 6 months' imprisonment. With the timely guilty plea, the sentence is reduced to 4 months. I sentence the defendant to 4 months' imprisonment for this charge.

Charge 2

19.Using a piece of brick to hit someone's head can be fatal and is a serious matter. Considering the injuries sustained by PW1, I adopt a starting point of 12 months' imprisonment. With the timely guilty plea, the sentence is reduced to 8 months. I sentence the defendant to 8 months' imprisonment for this charge.

Charge 3

20.Demanding someone to do something against her will by pointing a knife at her is a savage and repulsive act. I adopt a starting point of 9 months' imprisonment. With the timely guilty plea, the sentence is reduced to 6 months. I sentence the defendant to 6 months' imprisonment for this charge.

Charge 4

21.Being tied up and gagged must have been a traumatic experience for PW1. Considering the duration of her being kept in the Unit, I adopt a starting point of 18 months' imprisonment[3]. With the timely guilty plea, the sentence is reduced to 12 months. I sentence the defendant to 12 months' imprisonment for this charge.

Charge 5

22.The defendant is no stranger to the "Theft" offence. However, owing to the age of his previous similar convictions, I would not increase the starting point. I adopt a starting point of 6 months' imprisonment. With the timely guilty plea, the sentence is reduced to 4 months. I sentence the defendant to 4 months' imprisonment for this charge.

Charge 6

23.For the purpose of this defendant, the maximum sentence for this charge is 2 years' imprisonment. A total of 60 air guns (both long and short) were involved. Mr. Yeung submitted that the defendant is a collector of model guns. At present, I have no basis to doubt Mr. Yeung's submission. There is no evidence showing the intended use of those air guns contemplated by the defendant, save for collection purposes. I have viewed photographs of those air guns. They look quite real. On the other hand, as demonstrated in Charge 8, the defendant admitted that he had brought along with him one of the pistols (Exhibit 32) to the Unit to scare PW1, though she made no mention of seeing any pistol-like objects.

24.I adopt a starting point of 15 months' imprisonment[4]. With the timely guilty plea, the sentence is reduced to 10 months. I sentence the defendant to 10 months' imprisonment for this charge.

Charge 7

25.The firing power of both the crossbow and the air pistol exceeds the statutory limit considerably. I accept there is no strong evidence suggesting that the defendant had any intention to use any of these arms in committing other serious crimes such as robbery or blackmail; however, there is cogent evidence showing that he may have trouble controlling his emotions and has a tendency towards violence in problem-solving. I will return to this issue at the end of my reasons.

26.I adopt a starting point of 15 months' imprisonment[5]. With the timely guilty plea, the sentence is reduced to 10 months. I sentence the defendant to 10 months' imprisonment for this charge.

Charge 8

27.The evidence related to this charge comes solely from the defendant's admissions. He admitted that he had brought along an air pistol[6] to the Unit to scare PW1; however, she did not mention seeing any pistol-like objects displayed by the defendant. On this basis, I adopt a starting point of 12 months' imprisonment. With the timely guilty plea, the sentence is reduced to 8 months. I sentence the defendant to 8 months' imprisonment for this charge.

Charge 9

28.This charge involves 2 extendible batons and 2 pairs of nunchaku. One extendible baton (Exhibit 4) was found in the Unit[7] and the remaining 3 items were found in the House. I have borne in mind the possibility that the defendant might have been a collector of weapons and objects alike. I adopt a starting point of 6 months' imprisonment[8]. With the timely guilty plea, the sentence is reduced to 4 months. I sentence the defendant to 4 months' imprisonment for this charge.

Charge 10

29.The defendant admitted having used a pair of handcuffs to restrain PW1 and sprayed the chilli solution in her eyes. I consider a starting point of 12 months' imprisonment just and appropriate. With the timely guilty plea, the sentence is reduced to 8 months. I sentence the defendant to 8 months' imprisonment for this charge.

Overall Sentence

30.Charges 1 to 5 arose from the incident of attacking PW1. Charges 6 to 10 arose from the house search conducted at the defendant's home. Bearing in mind the totality principle, I consider a global starting point of 4 years' imprisonment appropriate for all 10 charges. With the timely guilty pleas, the overall sentence is reduced to 32 months. I order the sentences to run in the following manner :-

(i)  Charges 4 and 5 concurrent;

(ii)  Charges 1 to 3 concurrent, but 4 months consecutive to Charges 4 and 5;

(iii)  Charges 6 and 8 concurrent, but 6 months consecutive to Charges 1 to 5;

(iv)  6 months in Charge 7 consecutive to Charges 1 to 6 and 8;

(v)  2 months in Charge 9 consecutive to Charges 1 to 8; and

(vi)  2 months in Charge 10 consecutive to Charges 1 to 9.

Thus, arriving at a total prison term of 32 months for all 10 charges.

31.The defendant is currently serving a sentence of 36 months in DCCC 1117/2020. He was sentenced by another judge on 30 April 2021 for an offence of "Arson". Mr. Yeung invited this court to give as much benefit of totality as possible to the defendant. With Mr. Yeung's consent, I retrieved the Summary of Facts and Reasons for Sentence in that case for reference. In fact, Mr. Yeung also represented the defendant in that case.

32.In DCCC 1117/2020, the defendant lit up a parked car which belonged to his sworn daughter's boyfriend (a Mr. Choi) by throwing a lit bottle of alcohol underneath it. The car was completely burnt. The defendant claimed that he was angry at Mr. Choi because Mr. Choi stood in the way between him and his sworn daughter. The offence took place on 28 March 2020, and the defendant was arrested on 10 April 2020.

33.Clearly, the defendant committed the 10 offences in the present case whilst on police bail. It is also apparent that the defendant had trouble controlling his temper and had the tendency of resorting to violence when he encountered obstacles in life (eg. burning up Mr. Choi's car and beating up his landlord). Both cases are unrelated, yet they show the defendant's ferocious and impulsive behaviour. There is very little I can do in terms of totality. I order 3 months in the present case to run concurrent with the sentence in DCCC 1117/2020.