HKSAR v. Ng Cheuk Yiu

DCCC 1044/2020

[2021] HKDC 1379

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1044 OF 2020

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REASONS FOR SENTENCE

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1.D3 pleaded not guilty to the charge of “wounding with intent” but was willing to plead guilty to a lesser offence of either “assault occasioning actual bodily harm” (“AOABH”)  or “common assault”. Prosecution did not accept his lesser plea. After trial, he was found not guilty of “wounding with intent” but found guilty on the lesser offence of “assault occasioning actual bodily harm”.

2.His case was adjourned to 4 November 2021 for sentence pending probation officer’s report.

3.He is recommended for 18 months’ probation supervision.

Mitigation

4.D3 was born in Hong Kong and is aged 16.  He was aged 15 at the time of the offence.  He lives with his parents at a public housing estate.  He finished Form 3 and was waiting to start his course in electrical works at the Vocational Training Centre (“VTC”)  in September when he was arrested.  His ambition was to follow his father’s footstep who works as an electrical works supervisor.  He intended to re-enroll in this course when it next starts.

5.As for the attack on the victim, he did not know the details of the grudge between D5 and the victim.  He had no intention of taking part in the attack nor was there any motive for him to do so.  He kicked the victim because he was afraid the other defendants would not play with him if he did not take part.  His counsel submits that shows his innocence and immaturity, but this sort of misguided loyalty and stupidity is not uncommon amongst youngsters.

6.Defence counsel submits the maximum sentence for “assault occasioning actual bodily harm” is 3 years’ imprisonment.  There is no sentencing tariff for this offence, and each case depends on the facts of the case.  The attack that D3 was found guilty of is the lower end of the scale of AOABH for it only involved fisting and kicking and the injuries to the victim at that point were not serious.  However, defence concedes a group attack on a single victim is an aggravating factor.

7.Defence counsel further submits, given D3’s young age at the time of the offence, his clear record and had offered to plead guilty to AOABH or “common assault”, is an indication of remorse, and he had been in custody for almost 17 months before he was allowed bail on 20 October 2021 after he was found guilty on the lesser offence, he has already paid more than he had to for his part in the incident.  Defence counsel submits rehabilitation far out-weighs punishment in the case of D3, the proper sentence is to place him on probation to help his reformation.

Deliberation of sentence

8.D3 was party to a group attack on a 15-year-old student inside an amusement game centre.  The reason for attacking the victim was because one of the co-defendants held grudges against the victim.  The group went after the victim, pulled him away from his companions and attacked him.  The CCTV cameras inside the centre captured the entire attack.  4 co-defendants started fisting the victim and the rest of the group joined in punching and kicking the victim. The assault continued after the victim fell onto the ground.  Then came the most alarming and ruthless part of the attack, that is, D7 first used a plastic signboard which he snatched away from a co-defendant and hit the victim with it repeatedly until the signboard was broken, he then used a fire extinguisher to hit the victim repeatedly, finished off by throwing the fire extinguisher at the already motionless victim.  Despite such ruthless and severe attack by D7, the group attack did not stop as some of them continued kicking the victim and one assailant used a rubbish bin to hit the victim.  They stopped only when some patrons inside the centre intervened.

9.As a result of the attack, the victim sustained very serious injuries.  According to Dr Hsu’s medical report, the injuries sustained by the victim were life threatening and resuscitation was required, and in view of his critical condition, his spleen was shattered and active bleeding, splenectomy was performed.  He was hospitalised for 23 days before he was fit for discharge.  Owing to an immunocompromised state after splenectomy, additional vaccinations and long term follow up with life long antibiotic prophylaxis would be necessary.  According to the impact statement taken by the police from the victim, the injuries he sustained seriously affected his day to day living.  He has recurring headache and dizziness, feels tired all the time for his spleen had been removed, easily short of breath if walks quickly, and cannot do any exercise nor manual work.  The impact will have lasting effect on his future well-being, his choice of work and quality of life.

10.D3 was found not guilty for wounding with intent because I accepted when the group decided going after the victim, the common intent of the joint enterprise was to assault the victim not to inflict grievous bodily harm.  Had they intended to inflict grievous bodily harm on the victim, they would have armed themselves before going after the victim. D3 was party to the first joint enterprise when the attack was limited to fisting and kicking but not in the second joint enterprise when weapons were spontaneously used by some of the defendants.  From the CCTV footages, one can see D3 was the only one amongst all the defendants who did not join in the attack when the group continued to assault the victim during and after weapons were used.

11.However, D3 gave different accounts about his relationship with the co-defendants.  In his trial, he testified that amongst all the co-defendants he was only familiar with D1, with the rest of the group, he just played with them in the amusement game centre.  He told the probation officer differently.  He knew D5 better as they were classmates in primary school and studied the same subject in VTC. He also knew D7 in VTC and they frequently hung out in the game centre together about once or twice a week.  From the information I received when sentencing the other defendants in this case, I learnt D7 is a member of Wo Shing Wo, a triad society, and he is the triad protector of some of the defendants in this case including D5.  D3 has not been honest with the court.  I have reservation whether he is truly remorseful merely by his willingness to plead guilty to a lesser offence.  His involvement in the incident is un-deniable for his presence and attack on the victim by kicking was captured clearly by the CCTV.

12.D3 is recommended for 18 months’ probation supervision with special conditions.  According to his counsel, he is willing to undergo probation supervision with the conditions as recommended for his reform.  The report reveals that D3 was not academically bright, his school attendance was unsteady, but he manifested no grave behavioural problems.  He has learnt a hard lesson for being detained for a long period and having gone through the legal proceedings.  He planned to resume studies hoping to achieve better qualification.  His parents are also supportive and they are committed to give him close guidance and support for his rehabilitation.  I took into consideration that he is a first offender, he has been remanded in custody for some 17 months up to 20 October 2021 since his arrest for this offence and that is equivalent to a sentence of 24 months’ imprisonment, his limited involvement and comparatively minor part in the attack, the insight he gained and his parents’ awareness and support for his reform, to place him on probation supervision by way of sentence is appropriate in all the circumstances.

Sentence

13.D3 is put on probation supervision for 18 months with the following special conditions:-

(a)  he shall submit to random urine tests/samples as and when directed by his probation officer; and

(b)  he shall remain at his place of residence every night from 10:00 p.m. until 6:00 a.m. the next morning, unless accompanied by at least one parent and with the prior approval of the supervising probation officer; and

(c)  he shall participate in any community programmes/activities the probation officer deems conducive to his rehabilitation as and when directed by his probation officer.

14.D3 is warned of the consequences should he fail to comply with the above special conditions or behave in such a way that may be considered as a breach of probation order.