HKSAR v. Keung Cho Man and Another

DCCC1438/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1438 OF 2009

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.D1 and D2 each pleaded guilty to 2 charges of "Wounding with intent", contrary to section 17(a) of the Offences against the Person Ordinance, Cap.212.

The Facts

2.At about 12:40 am on 16 November 2009, PW1 Mr. CHOW and PW2 Madam HO were leaving their workplace, a Japanese restaurant situated at Nga Tsin Long Road, Kowloon City. When they went outside the restaurant, 2 males wearing surgical masks jumped out from ambush and struck them on their heads with iron pipes. PW1 and PW2 struggled and shouted loudly. The 2 males then ran away.

3.PC 33599 (PW3) was patrolling in the vicinity. He saw 2 males being chased and run into a rear alley. PW3 sought reinforcement. At about 12:50 am, D1 was found squatting inside the said alley, naked from his waist up, holding an upper garment with bloodstains on his hands. After enquiries, PW4 arrested D1 for "Wounding". Under caution, D1 claimed that he only attacked the victims with fists and not iron pipes.

4.The Police scouted along the escape route of the 2 males. An iron pipe was found inside a rubbish bin on Prince Edward Road West.

5.In a video-recorded interview conducted in the afternoon on 16 November 2009, D1 admitted, under caution, that at about 11:00 pm on 15 November 2009, D2 phoned him asking him to come out. He met D2 in Chai Wan and took a taxi to Kowloon City together. They went into a rear lane outside a Japanese restaurant where D2 found 2 iron pipes. D2 asked him to attack 1 male and 1 female who would soon come out of the restaurant with the iron pipes. They waited in the rear lane. When the victims came out, D2 attacked them with an iron pipe. D1 picked up an iron pipe and joined D2 in the attack. D1 struck the male on his chest, legs and hands with the iron pipe. They fled after the attack and were chased by a police officer. D1 discarded his iron pipe in a rubbish bin on the way. After running for about 2 streets, they went inside an alley. D1 could not run further whilst D2 was able to escape. D1 did not know why D2 wanted to attack the victims.

6.D2 was arrested at his home in the evening of 16 November 2009. In a video-recorded interview, D2 admitted, under caution, that when he previously delivered goods to a shop near the Japanese restaurant, he came across a male and a female. The male blamed him for starring at him. The male swore at him and the female scolded him. In the evening of 15 November 2009, he decided to take revenge. He called D1 to help him and brought D1 to Kowloon City. They waited in a rear lane outside the Japanese restaurant. At first, D2 intended to hit the victims with fists only, but he found 2 iron pipes in the rear lane. He picked up an iron pipe and gave the other one to D1. When the victims came out, D2 rushed to attack the female first and then the male. They fled after the attack. On his way home, D2 dumped the iron pipe and his clothes into the sea.

7.PW1 suffered injuries on his head where he received 11 stitches on his left ear and 9 stitches on his scalp. PW2 also sustained injuries on her head where she received 5 stitches on her scalp. Miss CHONG for the Prosecution confirmed that both victims have recovered fully with no permanent disability. PW1 spent 1 day in the hospital whereas PW2 was discharged on the same day.

Mitigation

8.D1 is now 19 and D2, 22. They both have a clear record. Both of them reside with their parents and all their parents are working. D1 has 2 elder brothers whereas D2 is the only child. Their education and employment history are unremarkable. Mitigation letters for both defendants were submitted. I note the positive comments about them by their respective employers. D1's counsel Mr. NG informed me today that D1 is willing to pay compensation to both victims in a total sum of $5,000; however, the payment has not yet been made.

9.Due to their age and clear record, pre-sentencing reports were obtained for D1 and D2.

Sentence

10.The pre-sentencing reports revealed that both D1 and D2 are drug dependent. D1 admitted that he began consuming ketamine and "Ice" in early 2007, whereas D2, ketamine, cocaine and Ecstasy since mid-2003.

11.In view of the comments made by the Probation Officers in the pre-sentencing reports and the nature of the present offences, an immediate custodial sentence for both D1 and D2 is inevitable.

12.It is plain that this case involves a pre-meditated attack on the 2 victims orchestrated by D2, who also solicited the help of D1. The attack was no doubt a savage and brutal one, with D1 and D2 acting in concert. The injuries suffered by both victims are serious. It is most fortunate that they have both recovered fully.

13.What disturbs me the most is the reason for the attack given by D2. In my view, the manners and brutality of the attack are completely out of proportion to D2's alleged grievance against PW1 and PW2. If D2's claim is true, he is an extremely violent and dangerous person in the society. But I have grave doubts about the true reason(s) for the attack. What D1 and D2 did has a strong flavour of a planned revenge attack by 2 "hired guns" (albeit an inexperienced pair), rather than an angry impulsive young man who had simply got off on the wrong foot with the victims.

14.In any event, I need not be concerned with the reason(s) for the attack and will not speculate either. I will sentence D1 and D2 based on the seriousness of their criminal acts and the injuries suffered by the victims. The Court of Appeal in HKSAR v YUEN Wai-kui CACC 280/2004 (unreported) held that the range of sentences for this type of offence is 3 to 12 years imprisonment, but everything depends heavily on the particular facts of each case.

15.For Charges 1 and 2, I adopt a starting point of 4½ years imprisonment each. One-third discount is given for the guilty pleas, reducing the sentence to 3 years imprisonment. For D2, who has played a leading role, I see no other mitigating factors which warrant any further discount. Therefore, for each charge, D2 is sentenced to 3 years imprisonment. For D1, had it not been his frank admissions, the Police might not have been able to locate and arrest D2 the next day after the incident. I will give him some credit for this. Accordingly, I will further reduce D1's sentence by 4 months. In other words, for D1, the sentence for each charge is 2 years and 8 months.

16.Having considered the totality principle, I order that for both defendants, the sentence for each charge shall run concurrently. Hence, the total prison term for D1 is 2 years and 8 month and D2, 3 years.