HKSAR v. Au Chun Foo

DCCC 404/2018

[2023] HKDC 866

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 404 OF 2018

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REASONS FOR SENTENCE

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1.Mr Au pleaded guilty before me to one charge of Wounding (Charge 1), contrary to section 19 of the Offences against the Person Ordinance, Cap 212; and one charge of Failing to surrender to custody without a reasonable cause (Charge 2), contrary to section 9L(1)  and (3)  of the Criminal Procedure Ordinance, Cap 221.

2.Particulars of Charge 1 are that he, on 11 March 2017, outside “7-Eleven Convenience Store”, Shop No 7, Ground Floor, Kai Tin Shopping Centre, Kai Tin Estate, Lam Tin, Kowloon, in Hong Kong, together with two persons unknown, unlawfully and maliciously wounded Wong Kam Hung, Eric.

3.Particulars of Charge 2 are that he, on 19 July 2018, in Hong Kong, being a person admitted to bail, without reasonable cause, failed to surrender to custody as had been appointed by a court.

Facts admitted by Mr Au

Charge 1

4.On 11 March 2017, beginning at about 0015 hours, three men including Wong (PW1)  were having drinks together outside a 7-Eleven Convenience Store (“the Store”)  in Kai Tin Estate.

5.At about 0240 hours, at the entrance to the Store, Mr Au tried to chat up an apparently unwilling female staff member Li.  PW1 saw what happened and intervened.  The two men had a row.  Mr Au left.  PW1 continued to drink with his friends.

6.About 11 minutes later, Mr Au returned with two young men.  They were each carrying a metal bar of about 2 feet long.  They ran towards PW1.  Mr Au struck PW1 in the head with his metal bar.  The two young men joined in the attack with their metal bars.  PW1 tried to block the assault with his bare hands.  PW1 fell to the ground and was unable to get back up.  The assault carried on for 10 odd seconds before the 3 attackers fled.

7.PW1 was admitted to United Christian Hospital and he was found to have the following injuries:

(a)  Swelling and bruising on right cheek and right periorbital region;

(b)  Laceration on right upper eyelid;

(c)  4 cm laceration over scalp;

(d)  Right maxillary fracture; and

(e)  Right eye subconjunctival haemorrhage.

8.PW1 was discharged from the hospital with analgesics, antibiotics and sick leave certificate for 7 days.  He was referred to maxillofacial and ophthalmology clinics for follow-up treatments.

9.Mr Au was arrested at his residence on 14 March 2017 for wounding PW1.

10.In an Identification Parade held on 3 July 2017, PW1 positively identified Mr Au as one of the males who attacked him with metal bars.

Charge 2

11.As part of the court process, a mention date was fixed to 19 July 2018. Bail was extended to Mr Au until then.  On the return day, Mr Au failed to turn up.  A warrant of arrest was issued against him.

12.On 25 June 2022, police arrived at the Hong Kong International Airport to attend to a case of seeking for assistance.  They found Mr Au who claimed he was refused entry.  Mr Au said he just landed from Cambodia and he was a person with an arrest warrant issued against him.  Police therefore re-arrested him.

Criminal record

13.Mr Au has two previous dissimilar convictions.

Antecedents

14.Mr Au is aged 26 (20 at the time of the wounding offence).  He had previously worked as a salesperson and a transportation worker.  He is single.

Mitigation

15.Mr Manuel Chong of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Au.  The following is a summary of the mitigation submissions.

16.The maximum sentence for wounding 19 is 3 years’ imprisonment.

17.There are no sentencing guidelines for the offence of wounding. Circumstances of the offence and the background of offenders differ from case to case (HKSAR v Wong Luk Sau [2013] 2 HKLRD 201 at paras 16-18).

18.Key factors in determining the appropriate level of sentence for the offence of wounding include the nature and circumstances of the assault, the use of weapon and the circumstances of its use, the defenceless state of the victim, and the nature and effect of the injuries suffered by the victim (HKSAR v Roka Sijan, CACC 281/2017, [2018] HKCA 986, at para 53).

19.In HKSAR v Lam Kin Chung [2007] 2 HKC 451, the applicant failed to surrender to custody in 1997 and was re-arrested in 2006.  He was sentenced to 6 months’ imprisonment upon a plea of guilty.

20.At the time of the wounding offence, Mr Au lived with his retired parents and his brothers.

21.At the time of the abcondence offence, he was young and immature.  He did not know how to handle the situation.  After about 4 years, after knowing his father had suffered a stroke, he returned to Hong Kong.  He knew that he was subject to a warrant of arrest and would be arrested at the airport.  Yet, he decided to accept the consequences.

22.Mr Au senior, now 82, is unable to recognize Mr Au junior who is understandably upset and has determined to turn over a new leaf.

23.During remand, Mr AU has sought assistance from religious faith and was enlightened by the Bible.

24.Mr Au accepted he attacked PW1 but he said he was not the trouble-maker.

25.Mr Chong relied on a 24-page Appendix to the written mitigation submissions consisting of 23 screen captures of the CCTV footage.  The relevant parts of the CCTV footage had been played in court.

26.The long and short of this is that there was an argument between PW1 & PW2 of the one part and Mr Au of the other part perhaps due to a misunderstanding related to Li.  It was submitted that the drunken state of PW1 contributed to the misunderstanding.  There appeared to be some evidence of PW1’s drunkenness from the video.  Li herself wanted to play down the incident and PW3 wanted to mediate.  The video showed some physical contact between PW2 and Mr Au.  The video showed there were at least some attempts by PW1 to make physical contact with Mr Au though the Re-amended Summary of Facts at para 7 averred to the fact that (the video shows)  there were physical contacts between PW1 and Mr Au at 0243 hours.

27.What Mr Chong was trying to emphasize was that this was not an unprovoked attack although he acknowledged that there was a cooling off period of 11 minutes between Mr Au’s departure from the scene and his later return for the attack.

28.Mr Chong also referred to the following cases for the court’s reference:-

(a)  HKSAR v Lee Siu Lam, CACC 318/2011;

(b)  HKSAR v Clifford Martin Frank, HCMA 1113/2001;

(c)  HKSAR v Gurung Ram Krishna, HCMA 743/2015; and

(d)  HKSAR v Leung Man Chun, DCCC 613/2016.

29.Mr Chong submitted on behalf of Mr Au four mitigation letters (first three of which in Chinese)  written respectively by Mr Au himself, his mother, his elder brother and a Catholic Deacon.  The letter writers generally asked for a lenient sentence for Mr Au so that he may start a new life and reunite with his family early.

30.Mr Chong also produced three Bible study certificates (two of which in Chinese)  awarded to Mr Au, and a medical certificate relating to Mr Au senior.

31.Upon invitation by the court as to what percentage of discount in sentence is applicable to Charge 1, Mr Chong submitted that 1/3 is still applicable as no trial date has been fixed when Mr Au absconded.  Mr Chong prayed in aid para 37 of Leung Man Chun (supra).

Sentence

32.The maximum sentence for a Wounding 19 offence is 3 years’ imprisonment.  The facts of this case could well be categorized as one of Wounding 17.

33.Except for the general sentencing principles repeated therein, I do not find the cases referred to by Mr Chong helpful.

34.For a case of wounding under section 19 or section 17, the facts of each case are the determining factor of what sentence to impose.

35.I have seen the photographs of the injuries and of the crime scene handed up by the prosecution without objection from the defence.

36.In this case, I note the following aggravating factors:-

(a)  Reprisal attack;

(b)  Weapon against bare-hand;

(c)  Joint enterprise;

(d)  Many against one (this is a factor distinct from joint enterprise); and

(e)  Head attack with metal bar the consequence of which could be very severe.

37.On Charge 1, all I could say is that this is a vicious attack by a group against a lone victim without mercy.  Fortunately, there was no permanent injury suffered by the victim.  The culpability is near the top of the scale. I have no hesitation in adopting a starting point of 2 years and 8 months.  Because of the fact that Mr Au did not plead guilty at the earliest opportunity but only did so after his return from abscondence, I will not give him the customary 1/3 discount in sentence.  After considering the extent of disruption to the judicial process and the inconvenience brought to the police and witnesses, I will give him a discount of 25% (HKSAR v Lo Kam Fai [2016] 2 HKLRD 308 especially para 3 per Yeung VP considered).

38.On Charge 2, I note Mr Au has not only jumped court bail, he has actually fled Hong Kong in breach of another bail condition.  He has been at large for almost 4 years.  I take into account that he voluntarily returned to Hong Kong knowing he would be arrested at the airport.  In the premises, I adopt a starting point of 6 months.  He pleaded guilty in good time earning for himself the full 1/3 discount.

39.There are no other mitigating circumstances to justify any further reduction in sentence.

40.The two offences were completely separate and the sentences appurtenant thereto ought to be served consecutively, subject only to totality.

(Mr Au, please stand)

41.For Charge 1, Mr Au shall go to prison for 24 months.

42.For Charge 2, Mr Au shall go to prison for 4 months.

43.After considering the principle of totality, I order that the sentences are to be served wholly consecutively to each other.