HKSAR v. Yue Ho Hin and Another

DCCC 287/2021

[2022] HKDC 312

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 287 OF 2021

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REASONS FOR SENTENCE

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1.D1 and D2 pleaded guilty to a charge of wounding with intend, contrary to section 17(a)  of the Offence against the Person Ordinance, Cap 212 that on 23^rd July 2020, outside “Jade Restaurant” located in Sai Yu Street, Yuen Long, New Territories, D1 and D2 unlawfully and maliciously wounded PW1 with intent to do him grievous bodily harm.

2.At about 8:15 pm on 23 July 2020, PW1 was standing on the pavement outside the restaurant facing its entrance, he suddenly felt great pain on the right side of his head as he felt that he was struck once by a hard object.

3.PW1 turned around and saw D1 was holding a spanner.

4.PW1 went into the restaurant and asked the staff to call the police.

5.PW2 saw PW1 run into the restaurant with his hand pressing on his head while D1 entered the restaurant with a one-foot-long spanner, but quickly turned around and left with D2.

6.PW2 chased after them and tried to stop the taxi of which D1 and D2 got into.  However, D1 told the taxi driver to continue driving.

7.PW3 witnessed the incident, he followed the taxi by driving his motorcycle.

8.Inside the taxi, D1 said that “it was great fun to have hit the man’s head causing him bleeding.”

9.D2 replied that “you took the chance and I did not have the chance to hit him.”

10.After they both alighted in Tsuen Wan, the taxi driver reported the incident to the police.

11.When the police arrived, PW3 pointed out D1 to the police on the upper deck of a bus.

12.CCTV of the restaurant also captured the attack by D1 with D2 standing at D1’s back.

13.D1 admitted in the video record of interviews that:-

“A male Chui Pak Hin had asked him to attack PW1 and he would be given $5,000 as reward, this was the instruction from another person called Panda Kit.

He did not know Panda Kit or the reason to attack PW1.

He agreed to pay D2 for $1,700 for assisting him in attacking PW1.

He had disposed of the spanner during the taxi journey.”

14.D2 was arrested in the following day. He admitted under caution that “he and D1 had assaulted and hurt a male.” 

15.Medical report of  PW1:-

(a)  There was a deep laceration wound seen over his right parietal area with oozing of blood.

(b)  There was no neurovascular deficit.

(c)  No skull fracture or brain bleeding.

(d)  PW1 was discharged on the same day.

Criminal Record

16.D1 has been a subject to a superintendent’s caution in 2019 for an offence of common assault.

17.D2 has one previous record in 30 December 2021 for an offence of common assault.  D2 was placed under a Care and Protection Order for 12 months.  The conviction was after the commission of the present case.  As such, he is regarded as having a clear record.

Mitigation

18.D1 and D2 were 15½ and 14 years old respectively at the time of committing the present offence.

19.They both have been remanded in custody for 8 months before the court granted bail in March 2021.

20.They have been further remanded since mid-February pending for various report. That means they both have been in custody for a period of about 10 months in total.

21.Both D1 and D2 did not know the victim and the reason for the attack. They both said that they are now remorseful and apologize to the victim for what they did to him.

22.There are letters from both defendants’ family members to plead for leniency on their behalves.

23.Both defendants came from broken families.

24.As to D1, the separation of his parents in 2018 had had a great impact on him and that also affected his academic performance. Since then he met some undesirable peers, the family members believed that it was the cause of committing the present offence.

25.As to D2, he is a gifted child as he is good at both school works and sports. But he lost his interest in studies and his school results dropped drastically when he was in the secondary school.

26.D2’s father plans to migrate to overseas to start a new life with D2 when he discharges from custody in the future.

27.The defence submitted that this was not the worse type of wounding and asked for training/detention reports for consideration of sentence in view of their young age at the time of committing the present offence.

28.Today, I am told that parents and family members of D1 and D2 are in Court to support them.

Pre-sentence reports

29.I called for a number of reports which included the Detention Center, Training Center and YOAP reports against both defendants. Subsequently, it is also revealed that D1 is a drug addict since mid-2020, therefore DATC report is called for D1.

30.The reports told me that D1 in:-

(a)	2018	:	joined the Wo Shing Wo triad society.
(b)	Early 2019	:	he attended the Teen’s program in hair dressing for about two months then he dropped out.
(c)	July 2019	:	he was arrested for common assault as he slapped his former schoolmate.  He was given a superintendent’s caution.
(d)	September 2019	:	he retook F.2.
(e)	January 2020	:	he dropped out from school.
(f)	Mid 2020	:	he enrolled in Teen’s program to learn automotive technology.
(g)	23 July 2020	:	arrested for the present offence.
(h)	March 2021	:	granted bail by the court
(i)	June to October 2021	:	he engaged in drug trafficking activities.
(j)	August 2021	:	unlawful detention.

31.Today I am told that D1 has been approached by the police for investigation. There is no further enquiry from the police. He was not charged for the alleged offence of unlawful detention.

32.The reports also informed me that during his remand in custody, D1 did not behave himself, he engaged in gambling, had disputes with the inmates and assaulted others.

33.YOAP report does not recommend D1 to be admitted into either Training Center or Detention Center as he is a drug addict. The DATC report recommends that D1 be admitted into DATC for treatment of his drug problem.

34.As to D2, the report informed me that he is an academically gifted child.  He was a top student in primary school.  However, when he reached secondary school, he lost interest in studies and ranked the last in his school year.

35.He became rebellious and turned wayward.  He had taken cocaine and cannabis in 2020.  He also joined the Wo Sing Wo triad society in the same year.

36.The report also said that D2 excelled in sports, he was a member of the school basketball team, athletics team, rugby team, he also represented the school in interschool swimming competition and achieved remarkable result.

37.It is rather unusual for such a sporty and athletic person like D2 to take drugs as it would affect his sport performance.

38.The report also told me that D2 failed to comply rules and regulations during his first period of remand. He has been put on adjudications on three occasions for fighting with another inmate, in possession of an article without authority and assaulting another inmate.

39.As such, he was placed under a 12 months Care and Protection Order for an offence of common assault.

40.Nonetheless the report recommended D2 be placed in the Detention Center for a period of “disciplinary training with sharp and shocking impact and close aftercare supervision would be beneficial for his rehabilitation.”

Sentence

41.When I pass sentence on the defendants, I have taken into account of all the mitigating factors before me, I also bear in mind the different roles that D1 and D2 played in this assault upon the victim.

42.D1 used the spanner to hit on the head of the victim once, while D2 knew the purpose of him for being there although he did not physically attack the victim. Fortunately, the victim did not suffer serious injury as a result of the attack.

43.D1 was promised with a reward of $5,000 for the attack. D1 recruited D2 to participate in the attack for a sum of $1,700. I am told that they both had not received any money as they were arrested very soon afterwards.

44.We all have seen the CCTV in open court, when the victim ran into the restaurant, obviously to seek for help, D1 followed the victim, but when he reached the doorstep of the restaurant he left.  D2 did not enter the restaurant at all.

45.Both Defendants did not know the victim and did not know the reason why the victim had to be attacked.  Clearly, D2 played a lesser role than D1.

46.According to S.109A of the Criminal Procedure Ordinance, Cap. 221, I am not obliged to consider to call for pre-sentencing reports before sentencing the defendants as S.17 of the Offences against the Person Ordinance is an excepted offence as stated in Schedule 3 of the Criminal Procedure Ordinance, Cap. 221.

47.However, in view of the young age of the defendants, I consider that pre-sentencing reports may assist me in reaching a just sentence for the two defendants.

48.The reports said that D1 is not suitable to be admitted into either the Training or the Detention Centre as he is a drug addict, the DATC report recommended his admission to DATC to treat his drug program.

49.In D2’s situation, the YOAP assessment was of the view that “a period of disciplinary training with sharp and shocking impact and close aftercare supervision would be beneficial for his rehabilitation. Therefore, the panel recommends Detention Center program in this case (D2).”

50.Against this background and bearing in mind that the victim did not suffer serious injury, as both D1 and D2 are of young age and they both have been remanded in custody for about 10 months, it will be for their benefit to be rehabilitated.

51.They should take this opportunity to reinvent themselves, to kick off his drug problem (D1), to benefit from the program of the detention center (D2)  ,  and to come out as a good person for the benefit of themselves,  their families, the society as a whole and to lead a meaningful life in the future.

52.To this end, I adopt the recommendations from the reports and I made the following order: -

a. D1 is sentenced to D.A.T.C. with conviction to be recorded

b. D2 is sentenced to Detention Center.