R. v. Wong Kin-kwok

CACC000241/1991

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Coram: Hon. Penlington, J.A., Nazareth, J.A. & Kaplan, J.

Date of Hearing: 19 March 1992

Date of Judgment: 19 March 1992

Date of Handing Down Reasons: 9 April 1992

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R E A S O N S

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Nazareth, J.A. (giving the judgment of the Court):

1. The Applicant was convicted on 7th May 1991 by Deputy Judge Stewart-Pearson in the District Court on three charges. First of claiming to be a member of a triad society contrary to s.20(2) of the Societies Ordinance, Cap. 151. Second of assault occasioning actual bodily harm contrary to Common Law and s.39 of the Offences Against the Person Ordinance, Cap. 212. And third of common assault contrary to Common Law and s.40 of the Offences Against the Person Ordinance, Cap. 212. He was sentenced in respect of the first count to two and a half years' imprisonment, on the second count to eighteen months' imprisonment and on the third count to six months' imprisonment. He sought leave to appeal against only the sentences imposed upon him on the first two charges. Having heard Mr. Jason Pow who appeared for him, we refused leave and now give our reasons.

2. The facts are quite simple. The Applicant used to be the boyfriend of the victim, one NG Wing-ting, who used to live with him. Following a disagreement, she moved out and did not tell him of her new address.

3. On the evening of 9th May 1990, Ng was having a meal with a new boyfriend and a third person in the King's Restaurant in Causeway Bay. Shortly after 10 p.m. the accused person and two other men entered the restaurant and went up to Ng's table. One of the men who accompanied the Applicant held a beef knife, which was sheathed, to the neck of the boyfriend. The Applicant told Ng that he had been looking for her for a long time. He told her to go with him. The boyfriend attempted to intervene. The Applicant who was known as Ding Gai said to the boyfriend "I am Ding Gai of Hung Fat Shan". The latter expression, it was accepted, is a triad society. The Applicant told the boyfriend to go away and when he did not do so he hit him on the nose. The Applicant then hit the girlfriend on her head whilst she was sitting at the table and kicked her. He pulled her by the hair outside the restaurant and there struck her with his portable telephone on the right side of her lip which began to bleed. Meanwhile the other two men attacked the boyfriend punching and kicking him until he retreated.

4. Outside Ng was forced into a taxi by the Applicant who was accompanied by the other two men. She was taken to an amusement centre and left alone with the Accused who told her she had to go back to him for three months. He would have to account for that to his brothers, that apparently being a reference to his brothers in the triad society. The Respondent then learned that the boyfriend had reported to the police. He told Ng to tell the boyfriend that he was not to make so much trouble and should withdraw the complaint. After about half an hour the Defendant took her to the Excelsior Hotel and gave her tea and eventually walked her home where she rang her boyfriend and joined him at the police station where she also reported the matter to the police.

5. Mr. Pow submitted that the sentence of two and half years on the first charge of claiming to be a member of a triad society is manifestly excessive. In support of that submission he referred to WONG Kwok-kin [1986] HKLR 9, 10 in which a 15-year-old offender was convicted of assisting in the management of an unlawful society and of being a member of an unlawful society and sentenced to detention in a training centre. He referred also to R. v. Tsang Chu Criminal Appeal No. 462 of 1986, unreported, in which the accused was convicted of being a member of a triad society and sentenced to two years' imprisonment, which the Court of Appeal remarked was possibly on the high side with respect to a first offender. However in this appeal we are concerned with the different offence of professing to be a member of a triad society and with very different circumstances.

6. Likewise, Mr. Pow submits that the sentence of 18 months' imprisonment on the second charge of assault occasioning actual bodily harm is also manifestly excessive. Again he referred to some case. In R. v. CHENG Chun-tim Application for Review NO. 13 of 1983, unreported, the prisoner's sentence was increased to six months for a serious assault. However there were strong mitigating circumstances in that case which are absent here. He referred also to the sentence of twelve months, reduced to nine months in Ngyuen Dinh Hao [1989] 1 HKLR 344, which was a serious offence having regard to one of its aspects, and to TSANG Fan-wah Magistracy Appeal 246 of 1988, in which the sentence of three months was reduced to a fine of $500. We do not find these cases of assistance. The circumstances were different, and bear no resemblance to the very serious circumstances of the offences before us.

7. Returning to the sentences before us, the Deputy Judge rightly did not take into account the Respondent's previous convictions. His reasons for the sentence were that these were nasty offences of their kind, although the injuries minor the victims were put in considerable fear and there were no mitigating factors except perhaps that the Respondent had been out of trouble since 1982. He considered that a substantial term of immediate imprisonment was necessary and that the two sentences should be concurrent as they arose out of one incident.

8. Clearly these were very serious offences, having regard to the circumstances. They took place at a restaurant, and the victims were subjected to a terrifying experience which bore all the hallmarks of a triad attack. The victims were clearly terrified. The female Ng was abducted with some force. The Respondent's alleged object, as Mr. Pow put it, to save face, was, if anything, an aggravating circumstance, and certainly not a mitigating factor as suggested. There was no error of principle nor in our view could the sentences be said to be manifestly" excessive.

Representation:

Mr. C. Coghlan, Sr. Crown Counsel (The Crown) for Respondent.

Mr. Jason Pow (Messrs. C.K. Mok & Co.) for Applicant.