COURT: I am going to deal with both cases together. The defendant pleaded guilty to two charges of burglary of commercial premises in HCCC 44/2022. He pleaded guilty at the earliest opportunity in the Magistrates’ Court. He was to be sentenced in the High Court because he was also charged with a single count of murder. As a result of his pleas to the burglary charge and his plea of not guilty to murder, the murder charge was set down for trial, HCCC 43/2022.
On the first day of trial for the murder charge, the defendant pleaded not guilty but indicated to the court and the jury he would plead guilty to manslaughter by an unlawful and dangerous act. The prosecution rejected this plea. After trial, the jury found the defendant guilty of murder by a majority of five to two.
Facts
Both burglaries involved the defendant breaking into and entering Dragon King Restaurant on the 2nd Floor of Yen Sheng Centre in Kwun Tong. The restaurant was locked up after the close of business on the evening of 10 December 2019. The defendant entered this building three times from 10.40 pm that night. The first time he entered for only four minutes through the main entrance. He came back a second time one minute later, entering the building at 10.45, he left 2½ hours later at 1.24 am. During this period of time. He committed the first burglary. He prised open a desk drawer at the restaurant cashier’s counter and stole $1,000.
The defendant entered for the third time half an hour later, 1.51 am. This time he could not gain entry to the building himself, so he brazenly approached a security guard, Mr Chan, at the locked gate to one of the car park entrances and told him that there was a break in upstairs. Mr Chan let him in. Doing his job, Mr Chan followed the defendant upstairs to investigate.
The defendant led Mr Chan to the rear doors of Dragon King Restaurant. One of the doors was open and clearly the restaurant had been broken into. Mr Chan told the defendant he would have to let his colleagues know and walked down with the defendant, this time following him.
On the landing near the 1st floor, the defendant suddenly attacked Mr Chan from behind. He then beat him around the head multiple times. Mr Chan tried to fight back. The defendant pushed Mr Chan to the floor and continued to assault him. He then put a bag over his head, tied up his hands and feet, and covered him with cardboard. He left Mr Chan lying on the landing.
He did not leave immediately after this to evade detection, but went back upstairs to try and open the safe of the restaurant. He obviously failed, but found a small metal cash box. He broke it open with a hammer and stole $30,000. He left the building via a different staircase and did not pass Mr Chan again. The beating and this burglary took place between 1.51 and 2.21 am.
After 4 am, Mr Chan’s colleagues went looking for Mr Chan when they could not find him at his guard post. They called the police and an ambulance when they found him tied up, covered in blood, and covered by a big piece of cardboard. The ambulance men found him unconscious but breathing. He was transferred to hospital, a CT scan showed extensive brain damage and injuries.
Emergency brain surgery was conducted by two neurosurgeons to remove a part of his skull bone to relieve pressure, intracranial pressure, drain and deal with hematomas. Despite surgery, Mr Chan never showed any improvement, never regained consciousness and died in the early hours of the morning of 14 December 2019. This was three days before his 66th birthday.
The defendant went home after leaving this building, but not before throwing away some items of clothing he had been wearing. He only stayed at home for a very short period of time before leaving and checking himself into a guest house in Mong Kok. He woke up later that day, had a haircut, and then proceeded to the border to cross over to China. He told a friend by WhatsApp when in China that he had done something terrible, he had assaulted someone causing serious injuries, and was getting his arms tattooed to alter his appearance to evade arrest.
We had three doctors and a pathologist give medical evidence. We had a blood splatter pattern expert give evidence. The pathologist who conducted the autopsy concluded that Mr Chan, the deceased, suffered very extensive brain damage from blunt force trauma. His injuries were compatible with blunt force trauma caused by multiple blunt impacts on his head area.
The prosecution relied heavily on the defendant’s video-recorded interviews and the re-enactment of the crime filmed. The defendant said on that landing before they reached the ground floor and the management office, he punched Mr Chan in the head eight times before pushing him to the ground, and punched him again seven to eight times in the head. The defendant said under caution it was an accident and he did not intend to kill, nor did he expect the outcome to be death.
The majority of the jury clearly did not believe this explanation and found the defendant had the necessary intention to kill or at least the intention to cause really serious bodily harm.
The offence of murder is the most serious offence in our law for which a life sentence is prescribed. The defendant has intentionally taken away another person’s precious life. He has intentionally taken away Mr Chan from his wife, children and grandchildren. They lived as a complete family unit before he was killed. This was an utterly tragic and senseless killing.
Mr Percy can say nothing on the defendant’s behalf by way of mitigation of any weight for consideration. I do know the defendant was 29 years old at the time, not a man with a clear record but nothing similar. He was married with three young children.
For the one count of murder in HCCC 43/2022, I accordingly sentence the defendant to life imprisonment.
The burglary charges by themselves would, because they were non-domestic premises, invite a starting point of 2 years and 6 months’ imprisonment where there is no aggravating or mitigating factors. The defendant pleaded guilty to these two burglary charges at the earliest opportunity.
I sentence the defendant to 1 year and 8 months’ imprisonment for Charge 1 and 1 year and 8 months’ imprisonment for the amended Charge 2, both burglary charges for HCCC 44/2022. I will order 6 months of the amended Charge 2 to be served consecutively to Charge 1. The defendant is sentenced for HCCC 44/2022 a total of 2 years and 2 months’ imprisonment.
Applying the totality principle to both cases, I order that the 2 years and 2 months term of imprisonment for HCCC 44/2022 be served wholly concurrently to the life imprisonment imposed for the charge of murder.