HKSAR v. Kwan Ming Hang and Others

DCCC 140/2021

[2021] HKDC 1455

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 140 OF 2021

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REASONS FOR SENTENCE

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D1 to D5 are jointly charged with an offence of "Affray". D3 pleaded guilty before me on 28 October 2021.

Summary of Facts

2.About 8:35 p.m. on 4 July 2016, PC 14806 (who was then off duty)  parked his motorcycle near Ground Floor, Block 10, Shek Lei (II)  Estate, Kwai Chung ("the Offence Location"). He saw 2 groups of people (about 15 persons in total)  running towards each other.  Some were holding metal batons and knives; and someone shouted "Hit them".  The 2 groups fought for about 2 minutes and then dispersed.

3.Upon police investigation, D3 was arrested on 5 July 2016.  Under caution, he admitted that he was acquainted with D5, who was slapped by someone on his face in an earlier incident on 4 July 2016.  Later on, D3 was told that his group would retaliate against those who humiliated D5.  Acting on instructions, D3 bought surgical masks for his group.  He was also given a metal torch.  During the fight at the Offence Location, D3 was afraid of being called disloyal so he hit a stranger with his torch.  D3 admitted having changed clothes before and after the fight.

4.D3 now admits that he, together with D1, D2, D4 and D5, had unlawfully fought and made an affray at the Offence Location.

Mitigation & Sentence

5.D3 just turned 24.  He was 18 when he committed the present offence.  He has 1 conviction record dated 2014, which was a "Theft" offence, and was given a Probation Order.

6.Defence counsel Mr. Tsui informed me that D3 grew up in a single parent family.  He currently resides with his maternal grandmother, 2 aunts and a cousin.  He only has occasional contact with his mother.  D3 started working after F.3 at the age of 16.  He makes regular financial contribution to his family.

7.In mitigation, Mr. Tsui submitted that after the present offence, D3 has reformed himself.  He has been working for a karaoke chain from 2016 to 2020.  He made "Employee of the Month" respectively in October 2016 and January 2020.  Mr. Tsui stated that D3 has worked his way up from waiter to assistant manager in 5 years.  Unfortunately, owing to the pandemic, D3 lost his karaoke job and could only find part-time or temporary jobs as delivery worker and waiter.  Mr. Tsui explained that D3 foolishly participated in the fight because he did not want to be considered as disloyal by his friends.

8.Finally, Mr. Tsui submitted that there is undue delay in the present case.  D3 was first arrested in July 2016.  He was not charged with the present offence until January 2021[1], some 4.5 years later. Between July 2016 and now, D3 has behaved himself and focused on his work.  His police bail was even cancelled with his bail money refunded in April 2020.  He had all the reasons to believe that this case had come to an end.  A bundle of mitigation letters and certificates was placed before me; their contents are duly noted.  They show D3 has reformed himself since July 2016.

9.I will deal with the issue of "delay" first.  Prosecuting counsel Ms. Chan has helpfully prepared a Chronology of Events for my reference.  I need not go into the details, suffice it to say that it took the Police 10 months (from July 2016 to May 2017)  to obtain forensic evidence (such as DNA, fingerprints and medical reports)  and to submit the case file to the Department of Justice for legal advice; and it took the advising counsel 3.5 years (from May 2017 to November 2020)  to complete his legal advice.  A total of 15 reminders (in the form of memos or email)  were sent to the advising counsel by the Police.

10.In my view, 10 months to gather all the forensic reports were perhaps a bit long, but still marginally acceptable.    However, 3.5 years for legal advice were inexcusable. It is no doubt an unreasonable and unjustifiable delay when it took 4.5 years from initial arrest to bring all 5 defendants to court.  Ms. Chan informed me that the advising counsel has already left the Department of Justice.  I see no good reason to disclose his name since there is not much the Director of Public Prosecutions can do at this stage.  I note that the Police has alerted the advising counsel's immediate supervisor of the situation in early November 2020.

11.I should, for the sake of completeness, mention that this case reached the District Court on 11 March 2021.

12.I adjourned the sentence to obtain a Community Service Report.  The comments in the report are in general positive.  The Probation Officer cited favourable comments from D3's current employer.  Since May 2021, D3 started to work for an online food supplier as a delivery person earning about $15,000 per month.  D3's employer is satisfied with his performance and intends to assign more duties to D3 including training of new recruits.  Shifts can be adjusted to facilitate his performing of unpaid work.

13.In terms of "delay" being a strong mitigating factor, the present case bear some similarities with Secretary for Justice v Chan Chi Tao [2020] HKCA 296 (CAAR 6/2018; Chinese judgment).

14.Had D3 been brought to court in a timely fashion, it is almost certain that he would have been under 21 at the time of sentencing.  Hence, section 109A of the Criminal Procedure Ordinance (Cap.221)  would apply, and imprisonment would have been the last resort, unless the court is of the opinion that no other method of dealing with him is appropriate.

15.At present, my hands are tied. Sentencing options which are created for the benefit of young offenders such as Rehabilitation Centre, Detention Centre and Training Centre are no longer available for my consideration because of D3's age being over 21.

16.I find that D3 most probably committed the present offence because of his foolishness and misguided loyalty to his friends.  There is no evidence suggesting that D3 poses any threat to the society.  Ms. Chan confirmed that D1 to D5 belonged to the same group.  No one from the other group was arrested.  No one from either group was injured either.

17.Since his initial arrest in July 2016, D3 did not give up himself.  He has behaved well and worked hard.  He tried to contribute to his community in various aspects.  He performed well on his job and did voluntary work.  Information from all angles shows that he has rehabilitated himself and transformed to become a law-abiding citizen.

18.As the Court of Appeal put it in Chan Chi Tao[2], by sentencing D3 to imprisonment now, it would not only declare his effort in reforming himself futile, but would also be devastating to him and his family.

19.Mr. Tsui has also submitted that the evidence against D3 in this case came solely from his own admissions.  I accept that this is to his credit as well[3].

20.Based on the reasons stated above, I consider that a Community Service Order is an appropriate and just punishment for D3 at this moment.

[Requirements of Community Service Order explained. D3 understood and is willing to comply.]

I sentence D3 to 180 hours of Community Service.