HKSAR V Wong Man Hei

DCCC 140/2021

[2023] HKDC 1050

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 140 OF 2021

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REASONS FOR SENTENCE
(RE-SENTENCE OF D5)

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1.The occasion for re-sentencing D5 came about after he has been sentenced to Community Service Order of 180 work hours (“the CSO”)  for Charge 1 Affray (see Reasons for Sentence at [2022] HKDC 602).

2.Ag Principal Magistrate Ms Veronica Heung has certified on 10 July 2023 that D5 has failed without reasonable excuse to comply with the CSO in the respect as specified in the Progress Report dated 20 April 2023.

3.I have myself had the benefit of reading the said report.  The gist of it is D5 performed unsatisfactorily in serving the CSO; his attendance record was unstable rendering completion of work-hours within time impossible; his work site performance grade was fair only; he had heated quarrel with another community service work-mate and threatened to beat him.  The Probation Officer was of the view D5 was no longer suitable to perform unpaid work under the CSO.

4.I allowed D5 the opportunity to say anything in reply to the report.  He admitted he was impulsive towards the work-mate but then he apologized to the work-mate afterwards.

5.After hearing D5, I am likewise satisfied that D5 has failed without reasonable excuse to comply with the CSO.

6.I then gave D5 the opportunity to mitigate on his own behalf.  In gist, he said that he was remorseful and regretted what he said to the work-mate and he regretted being unable to complete the CSO in time; that he now has a stable full-time job earning $17,000 to $18,000 a month and he does not want to disappoint his family.  He hopes the court can exercise its discretion to impose a lighter sentence.  He produces a mitigation letter written in Chinese saying essentially the same thing.

7.Having revisited the original Reasons for Sentence and considered D5’s mitigation, I am of the view that an immediate term of imprisonment is apt in the case of D5.  The reason for that is he has not treasured the mercy that had been extended to him on the earlier occasion and he has again resorted to a threat of violence when the offence of which he was convicted was itself an offence of unlawful violence.

8.Taking into account the fact that D5 has served about half of the CSO, I adopt a starting point of 4½ months.  He pleaded guilty in good time and therefore is entitled to the customary 1/3 discount.  The offence occurred in July 2016 and is therefore quite stale.  For that fact, I will further reduce the sentence after the 1/3 discount by one month.  To the extent the CSO might still be valid, I revoke the order and re-sentence D5 in the following manner in exercise of my power under section 8(4)(b)  of the Community Service Order Ordinance, Cap 378.

9.For Charge 1, D5 is re-sentenced to 2 months’ imprisonment.