HKSAR v. Chau Kin Sum and Another

DCCC 559/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 559 OF 2008

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Reasons for Sentence

1.D1 pleads not guilty to Charges 1, 3 and 4. In relation to Charge 1 and Charge 3 he admits attempted wounding but without any specific intent to do PW1 grievous bodily harm. Such lesser pleas are not accepted by Prosecution. In relation to Charge 4, D1 completely denies. After trial, he is convicted on Counts 1 and 3 of attempted wounding simpliciter. He is also convicted on Count 4 as charged.

2.D2 completely denies Count 1. He is convicted of attempted wounding simpliciter, i.e., attempted wounding but without any specific intent to do PW1 grievous bodily harm.

3.The evidence reveals D1 out of revenge attempted to wound PW1 with a knife and with others in March and May 2008. D2 was an accomplice in the March incident. He also chased PW1 with a knife. The knives were seen as about 14-15 inches long. Fortunately, PW1 managed to escape on both occasions and he was not hurt.

4.Although I find Prosecutor has not proved that the assailants including D1 and D2 had any specific intent to do PW1 grievous bodily harm, Charge 1 of which both defendants are convicted is still a serious crime because I find they did intend to wound PW1 with knives. The same is true of Charge 3, of which only D1 is convicted. D1 wanted to wound PW1 with knife again in that May incident. D1 admits in the post-conviction report that Exhibit P7 was the knife used by him on that latter occasion. Exhibit P7 is indeed a dangerous weapon. It has a blade of about 10 inches long. It can easily wound PW1.

5.D1 retained Exhibit P7 in his premises later. No doubt, he kept it with intent to use it for any unlawful fight or assault again.

6.D1 has a clear record. Counsel tenders detailed mitigation on his behalf. People of some Christian organizations, his employer, his colleagues and his sister all speak good of him. D has also enrolled with an institute to pursue some study whilst on gainful employment.

7.Counsel mentions HCMA 69/00 and HCMA 11/02. In those two cases, the defendant being guilty of one count of Wounding 19 was eventually sentenced to Community Service Order in lieu of imprisonment and Training Centre, respectively. Counsel asks me to call for Community Service Report in D1’s case.

8.Each case is to be decided on its own facts.

9.I refuse to call for Community Service Report in D1’s case despite he had a clear record. It is true that D1 had a clear record and he has many people speaking good of him. He shows a lot of remorse and honesty by pleading to committing attempted wounding simpliciter in relation to Charges 1 and 3 which is also what he is convicted of on those two counts after trial. Nevertheless, his misdeeds are serious in that he tried to use a dangerous knife to chop PW1 not just on one but two occasions. Neither incident can be said to be out of impulse. The acts were entirely out of vicious thought. The use of such dangerous weapon (a knife of more than a foot long) was clearly hideous resort to blatant violence. D1 is also convicted of retaining Exhibit P7 for future use in fight or assault. Any one of these three convictions is too serious to be dealt with by way of Community Service Order.

10.Counsel says D1 had remained in custody for 65 days before he got bail. Plus the 14 days’ remand for report after trial, he has been in custody for a total of 79 days already. Counsel says D1 should be treated therefore as having served 3 months’ imprisonment and the court should be lenient with him.

11.It is a fact D1 had been detained for 65 days after his arrest in late May for fear he might interfere with prosecution witnesses. After conviction, he was detained for two weeks for report. He has been in custody for a total of 79 days. However, that is not to say he has already served his sentence or a good part of his sentence. Sentencing a defendant of D1’s age and in his circumstances requires more thought than mere counting of days.

12.D1 is now 20. Tomorrow, he will be 21. He has a clear record. The post-conviction report provides detailed information of his. The conclusion is that he is suitable for Detention Centre. I agree. D1 has a carefree character and has led an undisciplined life. He had a carefree style of life. He mingled with bad elements. The present convictions show that he easily resorted to violence. No doubt, he needs a clear and sharp lesson in order to reinforce the remorse he has demonstrated so far. That kind of sharp, short, shocked discipline training available in Detention Centre would benefit him. There is a place for him there. Counsel says D1 is also willing to take the chance. Although I can still sentence D1 to a term of imprisonment despite he is not yet 21 because of the effect of s.109A, Cap. 221, in the circumstance I should give him a chance. I thus order D1 be sentenced to Detention Centre in lieu of imprisonment on each of Charges 1, 3 and 4.

13.The Probation Officer has prepared a detailed background report in D2’s case. It contains all the information I need to know. Regarding Charge 1, D2 said he was quite drunk on that occasion and he could not remember the details. He sought to say D1 dragged him into trouble. D2 is not remorseful at all.

14.Counsel emphasizes D2 is only convicted of attempted Wounding 19. The victim was not injured.

15.I do sentence D2 merely for attempted Wounding 19. But the fact remains that he used a dangerous knife to do that. It was pure luck that PW1 ran fast and managed to escape or he must be injured somehow with knife wounds. D2 is over 21. He has four previous convictions between 2004 -2006: all related to violence - two for ‘Assault occasioning actual bodily harm’, one for ‘Robbery’ and one for ‘Assault with intent to rob’. He had been to Rehabilitation Centre and Training Centre. Counsel says D2 left Training Centre in November 2007. Apparently he had not learnt enough there to reform himself. He committed the present crime a few months later in March 2008.

16.Due to his age, D2 cannot go to Training Centre again. Detention Centre is not available to him as he had been to Training Centre. Community Service Order is certainly out of question for such serious crime he is convicted of. Imprisonment is the only option for him. In the circumstance in which he is found guilty of attempted Wounding 19 under Charge 1, twelve months’ imprisonment should be the right starting point. He pleads not guilty at all and deserves no discount. He is thus sent to prison for twelve months.