HKSAR v. Cheng Hung Kwong and Another

DCCC1038/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1038 OF 2008

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Reasons for Sentence

1.D1 stands convicted of two charges of section 19 wounding on his own pleas, Charge 1 and Charge 3.  D2 stands convicted of two charges of section 19 wounding after a fully contested trial, Charge 2 and 4.  D1 is sentenced on the basis of the facts as admitted by him.  As for D2, he will be sentenced on the court’s findings on the evidence.

2.All the offences were committed in the early hours on 8 January 2008 outside a Sun Li Kee Restaurant located inside the shopping mall of Tai On Building.  D1 and D2 together with other persons unlawfully and maliciously wounded PW3 and 4, a couple who runs Sun Li Kee Restaurant.

3.The facts as admitted by D1 in the evidence before the court show that PW3 and 4 were working in their shop at about 10.30 pm on the 7th.  A group of males appeared outside the shop.  The couple were concerned about the presence of these males.  The males dispersed after a report was made to the police.  At about 1.30 am on the 8th, the group of males appeared outside the stall again.  Some of them threatened to smash up the stall if the victims dared to open the shop on the following day.  After the threat was made, they left the shop.

4.At about 3.30 am on the 8th, when PW3 and 4 were still inside the shop, four unknown males appeared.  The same threat was made to PW3 and 4 that they must not open the shop on the following day or else the shop would be smashed up.  The victims were abused with foul languages.  Suddenly, D1 tried to shut the roller gate of the shop.  PW3, who was in fear that he would be attacked, dashed out of the shop, followed by PW4.

5.PW3 fell when he reached the entrance of Tai On Building.  He was attacked from behind and suffered the injuries, including the wound in question.  The injuries consist of 2 cm long laceration on the left thigh, two times 4 cm abrasion over the right forearm, abrasion over the right hand, 2 cm diameter swelling over the right chest and redness over the head.

6.PW4, who ran after her husband, was stopped and restrained by a male, and she was punched on her face by another male.  She suffered a 1 cm long laceration on her nose.

7.PW3 eventually made his way to Shau Kei Wan Traffic Accident Report Centre and made a report to the police.  He returned to Tai On Building with the police officers.  Eventually, PW3 and the police officers located D1 who was at the scene at the time.  The facts as admitted by D1 show that PW3, referred to as PW1 in the Admitted Facts, recognised D1 to be the male who attempted to shut the roller gate while PW2, i.e. PW4, at trial recognised D1 to be the male who restrained her left arm.

8.As to what D2 did inside Tai On Building, it is all contained in the CCTV recordings.  At the time of the attack, D2 appeared with D1 and two unknown males.  D1 and the two unknown males went inside the shop while D2 stayed outside.  When PW3 and 4 dashed out of the shop, D2 had chased after the victims for a short distance.  Though there is no evidence that D2 carried out the attack himself, he was convicted on the basis of acting in joint enterprise with the actual assailants.

9.Both D1 and D2 are not men of clear record.  D1 has previous convictions for burglary, theft, possession of DD, behaving in a disorderly manner in a public place, assaulting a police officer and driver failing to provide a blood or urine specimen for analysis.  For these past convictions, they had been put on probation, fined by the court and placed under a community service order.

10.On the part of D2, he has previous convictions for gambling in a gambling establishment, driving whilst disqualified, using a motor vehicle on a road against a third party risk, and speeding.  For these past offences, he was fined by the court and disqualified from driving.

11.The antecedent statement of D1 shows that he was born in 1974.  He is now 34 years old.  He received Form 1 education in Hong Kong.  He has been working in a noodle shop in Causeway Bay since 2007.  He is residing with his family members at a public housing unit.  His family members consist of his wife and two children aged 10 and 6, respectively.

12.On the part of D2, he is now 47 years old, born in 1961.  He had received Primary 5 education in Hong Kong.  He is unemployed, but I am told by defence counsel that D2 is, in fact, gainfully employed, though his income has been unstable in the past years.  D2 told the police officer that he has suffered from psychiatric illness and disability of the right knee.  D2 is living with his family members in a public housing unit.  His family consists of his wife, a daughter aged 17 and a son aged 14.  In his evidence, D2 told me he has a baby at home.  I inquired from Mr Chan.  After seeking instructions from D2, Mr Chan told me the baby was D2’s son and given birth by the girlfriend of D2.

13.Mr Ng for D1 told me in mitigation that the father of D1 passed away when D1 was only 3 years old and the mother of D1 had remarried since then and D1 was effectively brought up by the paternal uncle and aunt.  When D1 was 25 years old, he lived on his own.  He paid regular visits to his uncle and aunt.  The uncle of D1 has passed away.  The aunt is now 65 years old, lives in Causeway Bay.  D1 pays regular visits to her.

14.D1 married in 1997.  His wife is a housewife.  The 10 year-old son of D1 is attending Primary 5 and the 7 year-old daughter is now attending Primary 2.  D1 maintains a good and harmonious relationship with his wife and children, and they depend very much on D1.  Counsel told me that D1 has no stable income.  He is a casual delivery worker, and he also works part-time at a noodle shop.  Out of his limited income of $3,000 per month, he contributes $2,500 to the family as household money.  The family is currently receiving $5,000 per month from the Social Welfare Department.

15.Counsel took me through the previous convictions of D1.  Counsel told me in the eyes of D1’s wife, D1 is a dependable husband and friend.  Though D1 was raised up in difficult circumstances, he has many friends and his friends play an important role in his life.  D1 treasures friendship very much, and it was the benevolent character of D1 that was exploited by his friend in this case.  It was Fook Li-ming who exploited D1’s friendship.

16.On the day in question, he asked D1 out for drinks.  They met at Tai On Building and had beer and food.  At the instigation of Fook Lee-ming(?) and under the influence of beer, D1 went along with others to the shop with the intent to scare off the victims, i.e. PW3 and 4, the proprietors of Sun Li Kee.  I was told the matter got out of hand and resulted in the present incident of assault.

17.After the incident, D1 was very remorseful for his stupid behaviour.  The evidence he is remorseful is his guilty pleas to the charges.  Counsel urge me to bear in mind that no weapon was used in the altercation; no weapon was used by D1 at all in the attack; and, fortunately, the victims did not sustain serious injuries; and they had fully recovered soon after the incident.

18.Mr Ng refers me to the case of HKSAR v Clifford Martin Frank.  The appellant in that case was convicted after trial on two counts of wounding, 19.  The facts of that case were far more serious than the present ones in that weapons were used and the injuries sustained by the victims in that case were far more serious.

19.Counsel refers me to the observation made by Lord Chief Justice in R v Goodwin & Others [1999] 2 CAR 128 CA.  The Lord Chief Justice was dealing with the equivalent of the section 19 charge in making the observations that he did.  But in Clifford Martin Frank, Madam Beeson J opines that those observations are pertinent equally to offences under section 19 and section 17.

20.And for completeness’ sake, I shall quote the observations in full:

“For an offender who had committed such an offence, there was a legitimate public expectation that he would be severely punished to bring home to him the gravity of the offence and to warn others of the risk of behaving in the same way.  If such punishment did not follow, public confidence in the administration of the criminal law was weakened and there would be a temptation on the part of some to exact their own retribution.  And as to the victim, punishment could not heal wounds but inadequate punishment would add insult to the injury.”

21.I indicated to counsel that the facts of this case show that the attack has every flavour of a triad attack.  Mr Ng refers me to the case of R v Ip Chong Fun & another reported in 1996.  Again, that was a wounding 17, charge.  The facts were far more serious than the present case.  Weapons were used by the assailants.  For the wounding 17, charge, the appellant received a sentence of 3½ years after trial, and the sentence was confirmed on appeal.

22.Mr Ng submitted a letter written by the employer of D1, who is also the cousin of D1.  In the letter, Mr Cheng told me that D1’s work performance was satisfactory.  He was hardworking and tried his best to meet the ends.  Mr Cheng told me D1 was remorseful after the incident and the family members of D1 have been desperate.  Mr Cheng pleaded for leniency on behalf of D1.  Mr Ng told me D1 is aware of the seriousness of the offences, and he asked me to be as lenient as possible and give full credit to the pleas of guilty entered by D1.

23.Mr Chan for D2 told me in mitigation that apart from the 14 year-old son and 17 year-old daughter, D2 has a baby with his girlfriend.  In terms of D2’s employment, he was making an average income of $10,000 despite the economic downturn.  Although D2 has a number of previous convictions, he had never been convicted for any violence-related offences.

24.Mr Chan submits D2’s role in the present case was relatively minor in comparison to the roles of other assailants.  He was not present when the group appeared at 1.46 am on 8 January and the CCTV recordings show that shortly before the three assailants entered the shop again, they had a short discussion and D2 took no part in it.  From the CCTV recordings, Mr Chan asked me to find that D2 did not take an active part in the attack.  Although the court found that D2 was acting in concert with others, there was no actual attack carried out by D2 on PW3 and 4.  Mr Chan asked me to consider calling for a community service report before sentence.  Failing that, he asked me to adopt a lower starting point.

25.In this case, although the assailants did not claim themselves to be members of any triad society and no triad utterances were made by the assailants, I find that the attack had every flavour of a triad attack.  Those who took part in the attack and in threatening PW3 and 4 appeared outside the shop.  They only dispersed after a report to the police was made.  They appeared again after 12 midnight.  They went into the shop to harass the victims.  They appeared again sometime after 3 am.  They threatened the victims again before the attack.

26.In fairness to the defendants, it should be mentioned that no weapon was used in the attack and the injuries sustained by the victims were relatively minor.  But nevertheless this case remains a serious case of wounding, 19, in that the defendants were acting in concert and the attack was carried out with a certain amount of pre-planning.  As said, the attack had every flavour of a triad attack.  In my judgment, proprietors of small shops who work hard in running their business, they deserve the full protection of the law and should be free from any harassment.

27.I have considered all the mitigating factors placed before me by counsel.  I have also taken into consideration those matters in favour of the defendants, in the case of D1, his pleas of guilty, in the case of D1 and D2, that no weapon was used in the attack and the injuries of the victims were relatively minor.  No doubt if a weapon was used, a higher starting point would be adopted.  And the relatively minor nature of the injuries sustained by the victims is something that I would take into account in setting the starting point.

28.As for the role of D2, I find him equally culpable.  I adopt the same starting point in the case of D1 and D2.  I do not think the mislaid loyalty of D1 towards Lee Fook-ming(?) can count as a mitigating factor.  I can share the feelings of the family members of D1, who will no doubt suffer as a result of D1’s incarceration, but D1 should have borne in mind the well-being of his family members before he committed the offences.  It is all too late for D1 to think about his family members after he committed the offences.

29.Mr Chan for D2 asked me to consider a CSO as a sentencing option.  But D2, through his pleas of not guilty and in his evidence, has shown no remorse at all.  In any event, on the facts before me, I do not think the present case justifies the imposition of a CSO, which plainly does not reflect the seriousness of the offences on the facts before me.  In my judgment, the present case calls for the imposition of an immediate term of imprisonment.

30.On the facts before me, I take a starting point of 21 months for each of the charges.  D1 is entitled to one-third reduction for his guilty pleas.  On the part of D2, I can see no mitigating factor at all.  In taking 21 months as the starting point, I have already taken into account the facts in his favour, i.e. the relatively minor nature of the injuries and that no weapon was used by the assailants.

31.For the reasons given in the case of D1 on Charge 1, I sentence D1 to 14 months' imprisonment.  On Charge 3, I sentence D1 to 14 months' imprisonment.  In the case of D2, Charge 2, I sentence D2 to 21 months' imprisonment.  On Charge 4, I sentence D2 to 21 months’ imprisonment.  All terms are to run concurrently.