HKSAR v. Chung Wai Chung

Case No.DCCC 478/2021[2024] HKDC 436

Court

District Court

Date14 Mar 2024

Judge—

Case Document

100%Judiciary

DCCC 478 & 838/2021 & 1007/2022 (Consolidated)

[2024] HKDC 436

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 478 AND 838 OF 2021 AND 1007 OF 2022 (CONSOLIDATED)

________________________

	HKSAR
	v
	CHUNG WAI CHUNG	(3^rd defendant)

________________________

Before:

HH Judge Kathie Cheung

Date:

14 March 2024

Present:	Mr. TRACY Maurice Peter leading Mr. CHAN Kleon, counsel on fiat, for HKSAR
	Mr. SZETO Park Patrick, instructed by Messrs. Fan Wong & Tso, assigned by the Director of Legal Aid for the 3^rd defendant

Offences:	[1] Causing grievous bodily harm with intent (有意圖而導致身體受嚴重傷害)
	[2] Wounding with intent(有意圖而傷人)
	[3] Common assault(普通襲擊)
	[4] Failing to surrender to custody without reasonable cause(無合理因由而沒有按照法庭的指定歸押駕)

________________________

REASONS FOR SENTENCE

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1.The third defendant was jointly charged with others for: one count of causing grievous bodily harm with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212 (charge 1), one count of wounding with intent, contrary to section 17(a) of Cap. 212 (charge 2), one count of common assault, contrary to Common Law and punishable under section 40 of Cap. 212 (charge 3). He was also charged with 1 count of failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap. 221 (charge 4). The third defendant pleaded guilty to all charges.

Facts

2.On or about 21 July 2020, Yeung Kai Tai (“Yeung”) rented a holiday accommodation at Bela Vista Villa, Cheung Chau (“Villa”) for 21 and 22 July 2020. The third defendant, Yeung, So Chin Ching (“CC So”), Kwok Wang Hin (“Kwok”), Cheng Pak Hin (“Cheng”) and So Pak Kei (“PK So”), made use of the said accommodation at the material times.

3.In the early hours of 22 July 2020, Liu Tsz Ho (“Liu”), Shek Ka Fai (“Shek”), Wong Ka Kin (“Wong”) and two young females (hereinafter referred as “the two young ladies”) arranged and stayed at a holiday accommodation at Tung Loi Court, Cheung Chau. The Villa and Tung Loi Court are only about 20m apart.

4.Liu’s party had purchased a number of items for consumption including some alcoholic drinks. At one stage, the two young ladies learnt that some other friends were staying at the Villa. They left Tung Loi Court and went to meet up with these other friends at the Villa. These “other friends” were the group occupying or using the premises rented by Yeung. At around 6am on 22 July 2020, Liu, Shek and Wong noticed that the two young ladies had not returned. They then went to the Villa to look for them. Shortly thereafter, Liu, Shek and Wong left the Villa with the two young ladies and walked towards Tung Loi Court.

Charge 3

5.Liu, Shek and Wong were followed by Cheng and a man called “Lam”. Liu became angry and charged towards Cheng and Lam. Cheng and Lam retreated. Liu and Wong pursued them into the Villa. Around 30 seconds later, Liu and Wong ran out from the Villa as they were chased by Cheng who was wielding a rod. CC So, Kwok and the third defendant, each wielding a rod, together with PK So and Yeung, followed behind. In the course of the chase, Cheng struck Wong's head and back with the rod several times.

Charge 1

6.Liu turned around and threw a glass bottle at Cheng but missed. Liu lost balance and fell onto the ground. CC So, Kwok, the third defendant, Cheng and PK So caught up with Liu and they attacked Liu repeatedly. Cheng struck Liu with his rod. Kwok took a nearby chair and struck Liu with it. PK So grabbed a nearby pallet and threw it at Liu. One of the assailants poked Liu in the eye. After around 30 seconds, the assailants stopped, except Cheng, who continued to strike Liu for another 15 seconds. PK So then pulled Cheng away. In the meantime, Wong had fled the scene.

Charge 2

7.At this juncture, Shek walked towards the assailants and confronted them. By then, CC So had already left the group and was walking towards the Villa. Kwok, the third defendant, Cheng, PK So and Yeung then struck Shek repeatedly. Yeung picked up a stick from the ground and struck Shek on the head several times. During the attack, Shek heard one of the assailants declaring that they were from the triad "Lo Sun".

8.After the attack on Shek, all the assailants returned to the Villa. A passerby who saw the incident reported the case to the police.

9.As a result of the attack, Liu sustained the following injuries: (1) ruptured left globe with periorbital swelling and subcutaneous emphysema; (2) fractured left nasal bone; (3) scalp hematoma at left frontal, left occipital and right parietal region; (4) fingers fracture at right hand; and (5) lacerations at right hand dorsum and left wrist dorsum. Liu's left eye became blind as a result. He was discharged from hospital on 28 July 2020.

10.Shek was found to have a deep laceration of 4cm in length at right side of scalp. He was discharged from hospital on 22 July 2020.

11.The third defendant was arrested on 18 September 2020. Records of the third defendant’s Octopus card show that he travelled by ferry from Cheung Chau back to Central at around 7:35am on 22 July 2020.

12.Liu positively identified the third defendant at an identification parade conducted on 21 September 2020.

Charge 4

13.At the first District Court Plea Day hearing on 3 June 2021, the third defendant was granted court bail and the case was adjourned to 14 July 2021. The third defendant failed to attend Court on 14 July 2021 and an arrest warrant was issued.

14.The third defendant was intercepted in Admiralty MTR station by the police on 9 January 2022 during anti-crime patrol and his wanted status was revealed. The third defendant was arrested for his failure to attend Court, and he was brought to the District Court on 11 January 2022 following this re-arrest. The third defendant did not give any explanation in Court, nor had he given any explanation earlier nor subsequently.

Mitigation

15.The third defendant is aged 25. He was aged 21 at the time of the offences. Prior to the offences, he lived with his mother and elder brother. He worked as a construction site worker. He has a clear record.

16.In mitigation, it was submitted that the third defendant was having fun and consuming alcohol with his friends at the Villa for quite some time prior to the subject incident. When the victims came to look for the two young ladies, the two young ladies at first refused to leave the Villa and thus an argument arose between the victims and the friends of the third defendant. The third defendant was then woken up by the heated exchanges and was still under the influence of alcohol at the material times. The third defendant was still trying to understand what was happening and had simply followed suit when his friends were fighting with the victims.

17.It was submitted that the incidents were the result of the dispute inside the Villa which were to a considerable extent provoked by the victims in forcing the two young ladies to leave and charging back into the Villa. The attacks were not premeditated.

18.Although the third defendant accepts guilt on the basis of joint enterprise, the Summary of Facts indeed did not suggest the third defendant was directly or specifically accountable for any overt acts or attacks on the victims. It was also pointed out that in relation to the attack on Liu, the attack involving the third defendant ended around 30 seconds when Liu had fallen down.

19.Having referred to some authorities[1], the defence submitted the starting point for charges 1-2 should be in the range of 4 to 5 years.

20.For charge 3, it was submitted that a short term imprisonment would be appropriate.

21.Bearing in mind charges 1-3 were committed at the same time and place over a short period of time involving the same parties, the third defendant urged this Court to consider imposing concurrent sentences on the 3 charges.

22.For charge 4, it was submitted a short term imprisonment would be appropriate. It was further submitted that as the case could not be dealt with as swiftly as it should be due to adjournment for various reasons, the third defendant has been remanded for about 26 months. Notwithstanding charge 4 is independent with the 3 other charges, on totality and the objective criminality of the matter, the third defendant urged this Court to consider imposing concurrent sentence on all 4 charges.

23.Finally, it was submitted that the third defendant has reflected and learnt a bitter lesson during his remand. He has truly reformed and urged this Court to impose a lenient sentence on him.

Sentence

24.Wounding with intent is a very serious offence. There is no sentencing guideline in respect of this offence. The range of sentence for this offence is wide, usually from 3 to 12 years’ imprisonment.

25.In HKSAR v Ma Tik Lun Dicky [2015] 1 HKLRD 380, the Court of Appeal referred to HKSAR v Chan Chun Tat [2013] 6 HKC 255 and reiterated that “wounding with intent” is a serious offence warranting a deterrent sentence and set out the major sentencing considerations:

(1)  the extent to which the assault was premeditated;

(2)  the motivation underlying the assault;

(3)  the mental or emotional state of the assailant;

(4)  whether the assailant was acting under the influence of alcohol or drugs;

(5)  whether the assault was committed by the assailant alone or as part of a group;

(6)  the type of weapons employed;

(7)  the level of force used;

(8)  the injuries caused to the victim;

(9)  the effect of the assault upon the victim (and those close to him or her).

26.In that case, the Court of Appeal also set out the aggravating factors for wounding case:

(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.

27.The third defendant is a young man with clear record. He is entitled to the usual one third discount for his guilty plea.

28.In the subject incident, the third defendant joined in three separate attacks on three victims. He acted in the company with others. They picked up weapons from the vicinity and repeatedly attacked the victims. The attacks were carried out in a public place. The attack went on after Liu had fallen down. As a result of the attack, Liu has a total loss of vision on his left eye. All these are aggravating features of this case.

29.On the other hand, I accept for the other two victims, there is no evidence of any permanent disability caused. I also accept the third defendant was under the influence of alcohol when committing the offences. This, together with the fact that they picked up weapons from the vicinity, supports the contention that the attacks were not premeditated. Further, there is no evidence to rebut the allegation that the incident was somehow provoked by the victims. The weapons used were not lethal weapons and all the attacks were for a relatively short period of time.

30.In view of the above, I consider this a serious case resulting in serious and lasting injury to one of the victims.

31.As far as totality is concerned, while charges 1-3 were committed within a short period of time on the same day arising from the same incident, unlike CC So who left and did not take part in further attack, the third defendant did not leave but he chose to take part in all three attacks. Therefore, I do not consider it appropriate to order total concurrent sentences on charges 1-3 as this cannot reflect the overall criminality of the third defendant. Whilst the third defendant has been remanded for about 26 months due to adjournment of this case on various occasions, given the nature of charge 4 is different from the nature of charges 1-3, I do not consider it appropriate to order the sentence of charge 4 to run wholly concurrently with the sentences of other charges.

32.In view of all the circumstances and the totality principle, sentence of the 4 charges are as follows:

Charge 1: starting point 5 years’ imprisonment, reduced to 40 months’ imprisonment for guilty plea;

Charge 2: starting point 4 years’ imprisonment, reduced to 32 months’ imprisonment for guilty plea, 4 months of the sentence to run consecutively to the sentence of Charge 1;

Charge 3: starting point 6 months’ imprisonment, reduced to 4 months’ imprisonment for guilty plea, 1 month of the sentence to run consecutively to the sentence of Charge 1;

Charge 4: starting point 3 months’ imprisonment, reduced to 2 months’ imprisonment for guilty plea, 1 month of the sentence to run consecutively to the sentence of Charge 1;

Total sentence: 46 months’ imprisonment