HKSAR v. Wong Kwan Fuk and Another

HCCC254/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 254 OF 2007

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Before   Hon Wright J

Date:    23 March 2009 at 3.36 pm

Offence:  Assault occasioning actual bodily harm, etc. (襲擊他人致造成身體傷害)

Transcript of the Audio Recording
of the Sentence in the above case

COURT:  You have each been found guilty by the jury after trial.  First accused, you have two offences, one of theft and one of criminal damage, and 2nd accused, you of a single charge of criminal damage.

The charges arose from events on 29 January 2006 at night in the Buddhist Cemetery at Chai Wan.  During the course of those events, a number of people damaged a gravestone belonging to a well-known Hong Kong person which related to his late wife.  In addition, the caretaker and his wife of the cemetery had certain of their possessions, $50,000 in cash approximately and various other items, stolen from them after they had been kept in their premises so as not to interfere with the work being done on the gravestone, and when it became apparent that no other spoils were going to be achieved that night.

You, 1st accused, have been acquitted by the jury of two other charges and, consequently, the allegations that surround those charges are matters which form no part of my sentencing consideration.

I accept, and it certainly was the evidence that emerged in the trial, that the theft from the caretaker and his wife arose towards the end of the evening’s activities and, as I have indicated, perhaps simply because no other valuables were obtained that night.  There is no evidence to suggest that it was in any way pre-planned or premeditated.  There was, as has been rightly pointed out on your behalf, 1st accused, no additional violence which accompanied the theft as such.

Insofar as the damage to the tomb is concerned, that certainly was a singularly distasteful operation which inevitably would have caused the family members of the person to whom it related considerable distress.  The cost of repairing the damage - for I understand it has, in fact, been repaired - was not substantial in cash terms, but I have no doubt that it would have taken an emotional toll on the family members.

Others involved with you in these events have been sentenced previously in Hong Kong and have been sentenced on a somewhat different basis, it seems, in the Mainland.

There is obviously a real element of organisation, certainly insofar as the criminal damage offence is concerned, even if the theft was somewhat on the spur of the moment.  That said, by virtue of the verdict of the jury, it seems to me that there is no justification for treating either of you in any different light to the others who have already been sentenced in this court.

The sentence which was imposed in respect of the theft charge was one that envisaged a starting point of 2 years imprisonment after trial, and that which related to the criminal damage charge was one that envisaged a starting point of 2½ years imprisonment.  I can see, in the circumstances, no sound justification for taking any different starting point in your respective circumstances. 

Insofar as, 1st accused, you are concerned, that leaves you with two charges and I have to have regard to the total sentence which ought to be imposed upon you.  These were separate and distinct offences although they occurred on the same evening.  The theft was entirely gratuitous and there is, in my judgment, a strong argument for making those two sentences consecutive to one another.

However, I must have regard, it seems to me, to the aggregate sentences that were imposed on the other persons involved in the events of that night, particularly given that they have been convicted of more offences, at least one of which, arguably, was more serious.  If I simply ordered that the two sentences that you are to serve be served consecutively to one another, that would, in my judgment, bring you too close to the sentences imposed on the other two persons and would not reflect the level of overall criminality to which I must have regard given the jury’s verdict.

Consequently, 1st accused, on Count 2, you are to serve a period of 2 years imprisonment and on Count 4, you are to serve a period of 2½ years imprisonment, of which 1½ years of the sentence on Count 4 is to be served consecutively to that on Count 2.  In other words, the aggregate period of imprisonment you are to serve is 3 years and 6 months.

2nd accused, you are to serve a period of 2½ years imprisonment on Count 4. 

There are, in my judgment, no mitigating circumstances which justify either of you having those sentences reduced.

Application for leave to appeal against conviction by both the accused dismissed. Please refer to CACC119/2009 dated 23 February 2011