HKSAR v. Au Yeung Ka Wai and Another

DCCC 317/2022

[2023] HKDC 1413

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 317 OF 2022

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REASONS FOR SENTENCE

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Charges

1.D1 and D3 plead guilty to the following charges:

(1)  Wounding with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap 212, against D1 and D3, together with two unknown persons;

(3)  Blackmail, contrary to section 23(1)  and (3)  of the Theft Ordinance, Cap 210, against D1 and D3, together with two unknown persons;

(4)  Theft, contrary to section 9 of the Theft Ordinance, Cap 210, against D1 and D3, together with two unknown persons.

Facts

The events constituting Charge 1 (wounding with intent, against D1 and D3 and others)

2.In early July 2020, X came to know D2 via a dating application.  They had consensual sexual intercourse in July and August 2020.  After that they did not contact each other.

3.On 21 July 2020, X asked D2 to meet up in a room at Kowloon Hotel.  At around 1930 hours, when X and D2 were inside the room, D2 said that she wanted to order takeaway.  She opened the door for D1, D3 and two unknown males (“Male A” and “Male B”).  D2 left the room.

4.After the four entered the room, D3 stood next to the door and while holding a folding knife of around 10 cm in length.  Male A and Male B accused X of having an affair with D2.  D1, Male A and Male B then assaulted X barehanded for about 10 minutes.  During the assault, Male A searched X’s backpack and found X’s wallet while held the folding knife and looking at X without taking part in the assault.

The events constituting Charge 3 (blackmail, against D1 and D3 and others)  and Charge 4 (against D1 and D3 and others)

5.After the assault, D1 removed X’s shorts and took nude photos of X with a mobile phone.  D1 demanded $50,000 as that X could leave.  X replied that he did not have the money.  D1 asked X to called X’s friends to pay but to no avail.  Male A asked X to write a debt note for $50,000 containing X’s personal information and an admission of having an affair with X, another person’s wife.  Male A and Male B assaulted X when X was writing the debt note.

6.Afterwards, D1 used X’s phone to call X’s friends but to no avail.  D1 told X that he would cut X’s foreskin if X could not pay.  At this juncture, D3 was still holding the folding knife.  X was afraid that D1 would publish X’s nude photos if X did not pay D1.

7.At around 2130 hours, ie, 2 hours after their entry into the room, the four left the room.  X checked his wallet and found the loss of $2,000 cash, his HKID card and his Octopus card, which had its $200 remaining value gone missing.

8.X attended the hospital and was diagnosed to have redness and bruising on his left lower eyelid, and laceration on the back of his scalp and left lower eyelid.  Six stitches were applied to the laceration.

CCTV footage

9.The CCTV footage captured as follows:

(1)  D1 – D3 and 2 unknown males were inside a room at Imperial Hotel, later found to be rented by D1 before the incident;

(2)  Afterwards, they went to Kowloon Hotel, D1, D3, Male A and Male B entered the room where X was;

(3)  After the incident, they returned to Imperial Hotel, D3 gave D1 some money in the elevator at Imperial Hotel;

(4)  D1 and D3 entered the room there after the incident.

Nude photos and nude video clip of X

10.Two nude photos and a 13-second nude video clip of X were found in D1’s phone.

What D1 and D3 told the police

11.After arrest and caution by the police:

(1)  D1 said he assaulted X because he got angry after discovering D2 had an affair with X;

(2)  D3 said D1 asked him to assault X as X had an affair with D2.

12.In the cautioned VRIs:

(1)  D1 admitted taking 3 people to assault X in the room and taking X’s nude photos;

(2)  D3 admitted meeting D1 and two unknown males in a room in another hotel where D1 told them D1 wanted to take revenge on X, who had sex with D2 before and asked D2 to have sex again. D2 went to the room to meet X first. A few minutes later, D1 knocked on the door and claimed that the takeaway had arrived. D2 opened the door for D1 and him, together with the two unknown males to enter the room. Then D2 left. X was nude on the bed. D1 accused X of having sex with D2 and assaulted X with the two unknown males. D1 instructed him to stand next to the door and watch. During the assault, D1 demanded $50,000 from X. X called his boss and colleagues for help to pay. They threatened to cut off X’s foreskin if X could not pay. As X was unable to pay, he offered to write a debt note and pay by instalments. The two unknown males took nude photos of PW1 with a camera. He saw a folding knife of about 10 cm in length on a table in the toilet of the room. He held it during the assault as he was afraid that X would take it. After the assault, D1 gave him $200 inside the elevator of Imperial Hotel and told him to take it as a repayment. He met D1 the next day. D1 told him that D1 had taken money from PW1.

Mitigation

13.D1 is 34 years of age.  In 2021, he lost his job as a truck driver.  He is married to D2.  They have separated since end of 2020.  They have a 7-year-old son and a 5-year-old daughter.

14.He has several criminal records involving assaults of various degrees and theft.  The last of them was in 2016 for assaulting a police officer for which he was sentenced to 2 months’ imprisonment.  It was already 4 years 10 months before the present offences.  I do not consider his previous records a ground for aggravating his sentence here.

15.D3 is 50 years of age.  He has several criminal records involving violence and dishonesty.  The last of them was in 2015 for assaulting occasioning actual bodily harm for which he was sentenced to DATC.  It was already 5 years 7 months before the present offences.  I do not consider his previous records a ground for aggravating his sentence here.

16.He was asked by his friend D1 to assault X for having sex with D2.  After the offences, he received $200 as D1’s repayment for his loan made to D1 beforehand.

Sentencing considerations

17.In HKSAR v Tung Pak Fai [2022] HKCA 1470, the Court of Appeal summarized the relevant factors when sentencing wounding with intent case:

“21. The relevant factors relevant to sentencing in wounding with intent cases were set out in HKSAR v Chan Chun Tat and endorsed in HKSAR v Jatinder Singh. These include the extent to which the assault was premeditated, the reasons or motivation underlying the assault upon the victim, the mental or emotional state of the assailant at the time of the assault, whether alcohol or drugs contributed to the actions of the assailant, whether the assault was committed by the assailant alone or as part of a group, the type of weapons employed, and the level of force or aggression and the persistence with which the assault was pressed home, the injuries caused to the victim and the effect of the assault upon the victim and those close to him or her (at paragraph 49, Chan Chun Tat). The list is not meant to be exhaustive but it purely demonstrates that the culpability of an offender of a wounding with intent charge will relate to the type of harm intended to be inflicted, the means by which that harm was inflicted and the circumstances generally surrounding the assault. Given the many imponderables as to why an assailant failed to achieve the injuries intended by him, the actual injuries caused is only one of the myriad of factors to be take into account. The gravamen of the offence is in the intent to inflict really serious injuries, which is the same intent as that required for murder. The lack of serious injuries does not necessarily reduce the gravity of the offence or offset the other aggravating factors.”

18.In HKSAR v Ma Tik Lun Dicky, CACC 112/2013, the Court of Appeal summarized the aggravating factors for sentencing wounding with intent cases as follows:

“41. … [T]he aggravating factors for this type of wounding case are: (1)  the defendant was the principal offender; (2)  the assault was committed in company; (3)  the assault was unprovoked; (4)  the assault took place in a public place; (5)  the assault went on after the victim had fallen down; (6)  the assault went on after the victim became unable to defend himself; (7)  the victim suffered serious and lasting injuries; (8)  at the police interview, the defendant misled the police as to the facts, indicating a lack of remorse…”

Sentencing D1 and D3

19.D1 was the instigator of all offences.  He was motivated by jealousy, greed and anger.  His plan was to wound and blackmail X to be reinforced by recruiting D3 and the two unknown males.

20.On Charge 1 (wounding with intent), I take a starting point of 36 months as it was committed with premeditation, with 4 people including himself, on and off for 2 hours from 1930 hours to 2130 hours, resulting in 6 stitches to be applied to X’s wound at the hospital.  After the one-third discount for his plea of guilty, the sentence is 24 months.

21.On Charge 3 (blackmail), X was subject to assault and humiliation of nude photo and video taking for ransom of $50,000 and the need to provide personal information on the debt note.  I take a starting point of 24 months. After the one-third discount for his plea of guilty, the sentence is 16 months.

22.On Charge 4 (theft), I take a starting point of 12 months. After the one-third discount for his plea of guilty, the sentence is 8 months.

23.By totality, I make an order for 2 months each of Charges 3 and 4 to be consecutive to the 24 months on Charge 1.  The total sentence is 28 months.

24.D3 was recruited by D1 to wound and blackmail X.  His role was to hold a folding knife to guard X as the other three manhandled X.  He was as much culpable as the others in the physical acts.

25.On Charge 1 (wounding with intent), I take a starting point of 30 months. After the one-third discount for his plea of guilty, the sentence is 20 months.

26.On Charge 3 (blackmail), I take a starting point of 21 months. After the one-third discount for his plea of guilty, the sentence is 14 months.

27.On Charge 4 (theft), I take a starting point of 9 months.  After the one-third discount for his plea of guilty, the sentence is 6 months.

28.By totality, I make an order for 2 months each of Charges 3 and 4 to be consecutive to the 20 months on Charge 1.  The total sentence is 24 months.