HKSAR v. Li Cheng Hong and Others

DCCC410/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.410 OF 2010

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Reasons for Sentence

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1.There are 3 charges in this case. Charge 1 against D2, D3 and D5 is for conspiracy to pervert the course of public justice. Charge 2 against D1 and D2 is for Assault occasioning actual bodily harm. Charge 3 against D3, D4 and D6 is also for Assault occasioning actual bodily harm.

2.D1 and D2 pleaded guilty to charge 2 on the first day of trial. D3, D4 and D6 were found guilty of charge 3 after trial. D2, D3 and D5 were found not guilty of charge 1 after trial. This Reasons for Sentence therefore deals with the sentence of D1, D2, D3, D4 and D6 on charges 2 and 3 only.

Background

3.D1 to D6 and PW1 to PW5 were all inmates of Stanley Prison at the material times.

4.PW3 (“OK Tat”) was convicted of the 1997 arson attack at “Top One Karaoke” in Prat Avenue, Tsim Sha Tsui where 17 people were killed. The mastermind, Choi (nickname “Sheung Dai”), of that attack had fled to mainland and was not apprehended until December 2008 when he was arrested by Shenzhen Police and then extradited back to Hong Kong. Choi was tried and convicted in HCCC 267/2009. PW3 gave evidence in that trial against Choi.

Charge 1

5.The evidence of PW1 and PW2 together form the basis of charge 1 against D2, D3 and D5. It is alleged that D2, 3 and 5 had said things to PW1 and PW2 intending for them to influence OK Tat into not giving evidence in the Top One Karaoke trial.

24^th March 2009 PW1 (“Ka Chun”)

6.PW1 was convicted of murder and sentenced to life imprisonment. He has been in unit 5  of Stanley Prison for about 12 years. PW1 is assigned cell 5 in the category A complex.

7.On 24^th March 2009, D2 and D3 allegedly approached PW1, a friend of PW3 OK Tat, to tell him to persuade PW3 not to testify against Choi at Choi’s upcoming trial. D3 also offered PW1 money for him to injure PW3 if PW3 refused to bow to pressure. PW1 refused and ignored D2 and D3. D2 then told PW1 that PW3 would be in great trouble if he did in fact testify against Choi.

8.Shortly after this conversation with D2 and D3, PW1 was approached by D5 in the washroom who demanded a favour from PW1. D5 asked PW1 to make it so that PW3 did not testify against Choi. PW1 refused.

26^th March 2009 PW2 (“Cheung Mo”)

9.PW2’s nickname is Cheung Mo. He was sentenced to life imprisonment for murder in 1998. Up to March 2009, he had been in unit 5 of Stanley Prison for around 4 years.

10.On 26^th March 2009, D3 and D5 allegedly approached PW2 in the workshop of unit 5. D3 asked PW2 if he knew that PW3 would testify against Choi. D5 told PW2 that there would be trouble for PW3 if PW3 did so testify. D5 asked if PW2 knew of any way to prevent PW3 from testifying against Choi.

11.It is the prosecution’s case that what D2, D3 and D5 did would allow the court to infer that there was a conspiracy to pervert the course of justice.

Charges 2 and 3

Charge 2 (D1 and D2 pleaded guilty)

12.On 28^th March 2009, while the prisoners were in the recreation hall, D1 and D2 attacked Lee Wai Man (nickname “Hoi Sin”) by punching his head several times. Lee fell to the ground and then D1 and D2 kicked his head and body several times. This part of the attack is caught on closed circuit television footage.

Charge 3

13.D3, D4 and D6 allegedly attacked PW1 “Ka Chun”, PW2 “Cheung Mo”, PW3 “OK Tat”, PW4 “Kwong Chai” and PW5 “Muk Chuen” in the same fight on 28^th March.

14.Details of the facts found proved are set out in the corresponding Reasons for Verdict and I will not repeat them here.

Previous convictions

15.D1 has 4 previous convictions with 2 for wounding.

16.D2 has 14 previous convictions, none similar to charge 2.

17.D3 has 6 previous convictions with one for wounding.

18.D4 has 4 previous convictions with one for wounding.

19.D6 has 4 previous convictions with one for wounding.

Mitigation

D1’s plea in mitigation

20.D1’s records were admitted. The only mitigation is his plea of guilty. It was momentary impulse that caused the assault. D1 had been a good friend of D2. On the day in question, he saw D2 and Hoi Sin having heated argument and they fought. D1 stupidly just joined in with a view to assist his friend, without realizing that he was wrong. one special aspect is that D1 due to the fight had been put by the correctional service in the punishment room for at least 2.5 months. This is very special, it is unlike conviction custody whereby by the rules of correctional service will be taken into account. This 2.5 months in the punishment room would not be taken into account, but in effect it was kind of imprisonment by itself.

D3’s plea in mitigation

21.Taking to the highest, what the allegation of D3 against PW1 is only holding a stool, but was blocked away by PW1’s stool, in terms of the assault, the part played by D3 was of the lowest. Similar to D1, D3 was also put in punishment room for 2.5 months. Please take that into consideration.

D2’s plea in mitigation

22.D2 is the first one who informed prosecution about pleading guilty even before trial. He admitted to his records. He is not someone who is not life imprisonment, he is expected to be released in 2018 in relation to a drug matter.

23.Counsel for D2 adopted the submissions of counsel for D1 and D3. After the incident, D2 was kept in the punishment room. Although there is no rule or law from preventing the defendant prosecuted, the punishment is imposed by the authority of the government. Urge the court to take into account. He was locked up for 2.5 months. You might recall that Lee Wai Man’s injury is not permanent. Although the cctv footage quite nasty assault, but in medical report, Lee luckily was not seriously injured.

D4’s plea in mitigation

24.D4 is not someone who will be locked up for life. His release is scheduled in 2017. In this matter, you have heard evidence that there was dispute which started off the fight. D4 was not the one who started the fight. OK Tat did not suffer permanent injuries. D4 had been locked up for 2.5 months.

D6’s plea in mitigation

25.D6 was in solitary confinement for 2.5 months. The injuries sustained by PW3 not particularly serious nature.

Sentence

Charge 2

26.The maximum sentence for AOABH is 3 years under s.39 of Cap.212.

27.The medical report of Lee Wai Man discloses injuries including multiple abrasions to his head, multiple bruising on his face and body. As can be seen in the cctv footage, the attack by D1 and D2 on Hoi Sin is quite savage, it is amazing that he did not suffer more serious injuries. Kicks after kicks were aimed at the head of the victim who was already lying down on the floor not fighting back or struggling. Fortunately there is no permanent damage on Mr. Lee.

28.The fact that the assault was carried out inside a maximum security prison is an aggravating factor.

29.In relation to charge 2, for D1 and D2 I will each adopt an initial starting point of 17.5 months’ imprisonment. I will deduct 2.5 months from this starting point for the time they had been put in solitary confinement for the fight, then reducing it by one-third to that of 10 months imprisonment in recognition of the defendants’ guilty plea.

30.I will order this sentence to be served consecutively to their present sentence.

Charge 3

31.The maximum sentence for AOABH is 3 years under s.39 of Cap.212.

32.The attacks on PW1 to 5 were savage attacks, they were hit on the head and there were repeated kicks to head area even after some of them had fallen down. The medical reports show multiple injuries, fortunately not serious. I am however aware that the named victim in the charge is actually just PW3, who suffered relatively minor injuries.

33.However, the fact that the assault was carried out inside a maximum security prison is an aggravating factor.

34.In relation to charge 3, I will first adopt a starting point of 17.5 months’ imprisonment for each of the 3 the defendants, deducting 2.5 months for their time in solitary confinement, since they are convicted after trial and so there will be no discount, their sentence is therefore 15 months’ imprisonment.

35.I will order this sentence to be served wholly consecutively to their present sentence.

Please refer to CACC408/2010 for the relevant appeal(s) to the Court of Appeal.