HKSAR v. Wong Sze Ho and Another

HCCC166/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 166 OF 2009

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

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COURT:  On 6 January of this year, Wong Sze-ho, who was the 2nd defendant in the trial was convicted of the lesser alternative charge assault occasioning actual bodily harm.  Ngan Sun-chi, who was the 4th defendant in the trial was convicted of wounding with intent to cause grievous bodily harm, contrary to section 17, Cap.212.  On that day, Ngan Lak-kwong, who was the 5th defendant in the trial, was convicted of murder and sentenced to be imprisoned for life.

In the case of each of these defendants now before me and in the case of the 5th defendant in the trial, the victim was the one and same person, namely Leung Chi-wing.

On the evening of 13 September 2008 which was the eve of the Mid-Autumn Festival, a number of groups of people were gathered at Big Wave Bay on the south side of Hong Kong Island.  They were there to enjoy themselves and, in the case of two such groups, the revelry of that evening turned to tragedy in the space of a very short time. 

The 2nd defendant and the 5th defendant, who is the brother of the 4th defendant, were together in one group with other friends.  The victim and his friends were in another group.  Shortly after 11 pm the two groups came into conflict.  There can be no doubt that the excessive consumption of alcohol was a catalyst in this regard.  The 2nd defendant and the 5th defendant were, in the initial stages, involved but not apparently as aggressors.  It is clear from the evidence that one of the members of the victim’s group was the person who first confronted those who were in the 2nd defendant’s and the 5th defendant’s group.

That confrontation, violent as it was, was resolved quite quickly.  One of the victim’s group, however, took the matter further and it was this action that led to a second confrontation.  A woman in the group to which the 2nd and 5th defendant were attached was punched in the face.  This led to an attack upon the victim.  It appears that it was assumed, by at least the 2nd defendant and the 5th defendant and latterly the 4th defendant, that the victim was the person who had punched the lady concerned.  I do not accept that this assumption was correct.  For my own part, having heard the evidence, I believe that it was one of the victim’s group who struck the woman and that the victim was mistaken for that person and for that reason was attacked.

What happened was this:  after the victim’s party had begun to leave the barbecue area following the initial confrontation, the woman I referred to earlier, the one who was punched in the face, pointed generally in the direction where the victim was leaving the barbecue area and indicated that that was where the person who had punched her was.  As a consequence, the victim was chased and attacked by a group of people which included the 2nd defendant, the 4th defendant and, subsequently, the 5th defendant.  He was unarmed.  He attempted to flee but to no avail. 

He was kicked, punched, struck with a plastic chair and a glass honey jar.  He died not because of the injuries he suffered as a consequence of this but because, as the jury found, the 5th defendant stabbed him in the neck with a pair of scissors at a point in time when the attack had almost concluded.

The 2nd defendant and the 4th defendant were not included in the murder charge because it was the prosecution’s case that the stabbing of the victim was not part of any joint agreement to which they had attached themselves.  Nevertheless, they had joined in a cowardly attack upon the victim who was unarmed and outnumbered.  Each of them, as were the two other defendants who were discharged at the end of the prosecution’s case, were charged with section 17 wounding.  Both pleaded not guilty at the outset of the trial.

However, in the case of the 2nd defendant, he offered to plead guilty to the alternative charge of assault occasioning actual bodily harm.  That offer was rejected by the prosecution.

The injuries that were relevant to the section 17 wounding charge were not injuries resulting in any really serious harm.  The victim suffered multiple bruises and abrasions and three minor wound injuries.  Had it not been for the stab-wound to the neck, he would undoubtedly have made a full and swift recovery.

The essence of the prosecution case was that notwithstanding that the injuries sustained by the victim, leaving aside the stab-wound to the neck, were superficial, that each of the defendants, that is the 2nd defendant and the 4th defendant, intended to cause to the victim grievous bodily harm and that that intention was reflected in and demonstrated by the extent of their involvement in the attack.

The jury’s verdicts indicate that, in the case of the 2nd defendant, he did not intend to inflict grievous bodily harm.  The verdict, properly understood, clearly accepts that whilst the 2nd defendant did willingly enter into the attack upon the victim, he withdrew from that attack and that whilst he must have struck the victim with a plastic chair, for that was the prosecution case, he did not at that time intend any more harm than would justify an assault occasioning actual bodily harm charge.

The jury’s verdict in the case of the 4th defendant clearly indicates their acceptance of the evidence of a number of prosecution witnesses who described the 4th defendant, or a person with white hair who was the 4th defendant, joining in the attack upon the victim, obtaining from a nearby barbecue site a glass honey jar which he then used to strike the victim on the head at least once with such force as to shatter that honey jar.  In the case of the 4th defendant the jury’s verdict means that they were satisfied that when he did this, his intention was to cause to the victim grievous bodily harm irrespective of the fact that he did not, which is surprising given the descriptions of his attack from a number of witnesses.

On the day the jury returned their verdicts I decided not to hear mitigation and sentence the defendants as I wanted to obtain more information about them.  This I did, in part as a direct consequence of the evidence in the trial.  It appeared to me that the behaviour of the defendants was, on the face of it, out of character.  These reports are now to hand and my initial thoughts appear to be correct; each of the defendants is referred to favourably in the probation officer’s reports and, in the case of both of the defendants, the testimonials which have been placed before me on their behalf.

The 2nd defendant is aged 32.  He is living in a relationship and was, prior to being arrested for this offence, employed in the banking industry.  Whilst not achieving a great deal of success academically as a student, he has, since leaving formal education, pursued and obtained a number of professional qualifications which are to his credit.  He has, in the past, been involved in aspects of community service, especially assisting the aged.  He has no prior convictions and was originally charged with murder.  He was arrested on 14 September and not released on bail until the murder charge was reduced to the section 17 wounding charge on 31 October.

On his behalf, Mr Yu submits that a suspended sentence of imprisonment would be appropriate in the circumstances.  He acknowledges that a custodial term would be appropriate but submits to me that to suspend that custodial term would, in some manner or form, assist the 2nd defendant in the future when it came to obtain employment.

The 4th defendant is aged 51 years.  He is the older brother of the 5th defendant in the trial who was convicted of the murder of Leung Chi-wing.  He has two children aged 23 and 20.  He has lived in the Big Wave Bay Village for over 30 years.  Whilst educated only to primary 6 level, he has nevertheless gained a number of skills which have stood him in good stead and regular employment over the years.  He has for many years been actively involved in the Big Wave Bay community.  He was elected village representative on two occasions.

It is apparent from the probation officer’s report that he was at all times a supporting husband and father.  He has two prior convictions, the only relevant one being for common assault in 2006 for which he was fined $500.  I have been provided with a number of testimonials as to his character and the esteem in which he is held generally and in the Big Wave Bay Village community.

Turning now to the appropriate sentences, given the nature of the attack upon the victim, the number of attackers involved, the fact that weapons were used and the multiplicity of the injuries sustained, albeit superficial, custodial sentences are entirely appropriate.  That is irrespective of the fact that the defendants are now convicted of different charges with different maximum sentences.  Neither counsel has sought to persuade me that a sentence other than a custodial sentence is appropriate.

In the case of the 2nd defendant, any sentence imposed must be reduced from an initial starting point to reflect his offer, at the outset of this trial, to plead guilty to the charge he was ultimately convicted of.  In the case of the 4th defendant, the starting point must adequately reflect the jury’s finding that he intended but did not in fact inflict really serious harm to the victim.

In the case of the 2nd defendant I consider that a starting point for sentence, after trial, of 12 weeks’ imprisonment is appropriate.  This will be reduced to 8 weeks to reflect his plea of guilty.  I do not accept his counsel’s submission that it is appropriate to suspend that sentence.  There is nothing in the nature and circumstances of the commission of the offence which would justify such a course.

In the case of the 4th defendant, a starting point for sentence of 9 months’ imprisonment is appropriate.  This is notwithstanding the submissions made to me by his counsel.  This, in my opinion, reflects both the nature and extent of the wound injuries, which were minor, and the fact that the defendant joined in an attack together with others intent upon causing serious harm to the victim. 

In those circumstances, the appropriate sentences I will impose are as follows:  on the 2nd defendant, a term of 8 weeks’ imprisonment; on the 4th defendant, a term of 9 months’ imprisonment.

I am very sorry, that is my miscalculation.  I do not intend that he should serve any further period of imprisonment, in which case what I will do is I will adopt a starting point for sentence of 12 weeks’ imprisonment, but I will sentence the 2nd defendant to such term as would justify his immediate release.