HKSAR v. Tang Tsz Yeung

DCCC 375 & 785/2010 (Cons)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS. 375 & 785 OF 2010

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Reasons for Sentence

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1.The Defendant has been convicted on his own pleas on counts 1, 3 and 4 on the indictment, namely count 1 of assault occasioning actual bodily harm, contrary to common law and punishable under Section 39of the Offences Against the Person Ordinance, Cap. 212, count 3 of inflicting grievous bodily harm, contrary to Section 19 of the Offences Against the Person Ordinance, Cap. 212 and count 4 of claiming to be a member of a triad society, contrary to Section 20(2) of the Societies Ordinance, Cap. 151. He has been convicted after trial on count 2, false imprisonment, contrary to common law and punishable under Section 101I of the Criminal Procedure Ordinance, Cap.221.

2.Facts admitted by the Defendant at the outset as well as the evidence before me disclosed the following:-

(1) He and PW4 Ms. Chan Yin-yu are married and they have 2 young sons.

(2) Since 2009, they have been living apart as their relationship had soured.

(3) In around November 2009, PW4 had become acquainted with PW1 Mr. Cheung Ka-chun.

(4) By March 2010, PW1 and PW4 were walking out together.

(5) At around 9:30 p.m. on 7^th March, 2010, which was PW4’s birthday, PW1 and PW4 went to the Lok Wah Street Playground in Tsz Wan Shan, Kowloon to meet PW5, Ms. Rain Kwong Siu-yi to go out together for dinner.

(6) Without warning, PW1 was ambushed by the Defendant together with 2 other males. The Defendant struck PW1 about his head, body and legs with an iron bar type object. Exhibits P13A and P13B, two metal tyre bars, were seized from the vehicle used in this incident and the Defendant admitted when interviewed under caution when these were shown to him that he had used one of these to assault PW1 (Charge 1). PW1’s injuries included right knee, arm and forearm pain, with right forearm swelling but no fracture was seen. The clinical diagnosis was soft tissue swelling.

(7) PW4 and PW5 were taken onto the van by the Defendant. This was observed by the occupants of a passing car, PW2 Ms. Ng Chui-yi, and PW3 Mr. Lam Ka-wo, who reported the matter to the police. PW1 also made a report to the police.

(8) The van drove off after PWs 4 and 5 were forcefully taken onto the van. During the journey, the Defendant scolded PW4 and repeatedly slapped and punched her on her head and face (Charge 3). She was subsequently examined at the Queen Elizabeth Hospital and hospitalized for one day. She was found to have sustained left peri-orbital bruise, nasal bridge bruise, upper and lower limb swelling and abrasion and nasal bone fracture.

(9) The Defendant used PW4’s mobile phone to telephone PW1 and over the telephone claimed to PW1 that he was a member of the Sun Yee On Triad Society and challenged him to meet in TST (Charge 4).

(10) Both PW4 and PW5 were seen to be crying and shouting for help and resisting and struggling when they were grabbed onto the van. They were grabbed around the neck and forcibly pulled onto the vehicle (Charge 2). That PW4 was forced onto the vehicle was not challenged by the Defence. PW5 was subsequently released from the van. She was pushed off the van. Although she had initially resisted being taken onto the vehicle, PW4 subsequently went with the Defendant to his father’s home where they discussed their relationship. She said that this was after both she and the Defendant had calmed down.

3.The Defendant is now aged 24 years.  He has been working as a dim sum master chef.  He has had 3 previous court appearances, dating back to 2008, all for offences involving violence, and I am told that on each occasion the offences arose because of his marital discord with PW4 and she was the victim on most occasions.  His last court appearance was on 20/8/2009 in KT 3386/09 where he was sentenced to 2 months’ imprisonment suspended for 24 months for an offence of common assault upon PW4, his wife. By the present convictions, he is in breach of the suspended sentence.

4.I was concerned about the Defendant’s background and I wanted to know more about his relationship with PW4 and the causes for the break-up of his marriage.  Thus, I had called for Background, Psychiatric and Psychologist Reports before sentencing, and these reports are now before me.  I have also the letters in mitigation written by the Defendant, his wife, his father and other family members and from his mother-in-law.  I have considered the contents of all these.  Mr. Lee has made full and thorough mitigation on behalf of the Defendant and I have taken into account all that he has said in mitigation on behalf of the Defendant.

5.The Background Report discloses that the Defendant has a supportive family – his parents are clearly very concerned about him – he has 2 elder and one younger sister.  He has 2 sons with PW4, one aged 4 and the other aged 3.  The elder son is looked after by his parents and the younger son is presently in foster care.  The Defendant left school when he was about 17 years old.  He has been gainfully employed as a dim sum master chef.  He met PW4 through the internet and they got married in 2005 as she was pregnant.  They were helped by their parents in looking after their 2 sons. They had frequent marital conflict over child care.  PW4 was not working but she did not take care of the children either and often went out for fun.  After the birth of their second son, she was involved in extra-marital affairs.  It was because of her conduct that resulted in his use of force and led to his previous convictions.  They separated in December, 2009, and the elder son was cared for by his parents while the younger son was put in foster care.  The Defendant told the Probation Officer that on the day in question, he had asked one of his wife’s friends to arrange a meeting with his wife to try and reconcile with her.  But when he saw her with her boyfriend, he became angry and assaulted the boyfriend and forced his wife onto the van where he assaulted her.  Afterwards, he drove to his parents’ home where they discussed their relationship and he promised to make amends and she forgave him.  The Defendant expressed regret for what had happened and said he would deal with his marital problems in a more proper and mature way in future.  PW4 was also interviewed and said they were not ready to be parents when they got married, and they did not know each other well enough.  She felt the Defendant was more concerned with his friends and his work than with her and thus dated others, which aroused the Defendant’s anger, as a result of which he assaulted her.  She viewed him as a responsible, traditional family man who cared for the family and loved the children.  They have discussed their relationship and intend to reconcile on his release.  She sought leniency for the Defendant.  His family have also echoed her plea for leniency for the Defendant so that the family can be reunited and the boys cared for by their parents.

6.The Psychiatric Report discloses that the Defendant does not suffer from any mental illness.

7.The Psychologist Report is a very detailed one and discloses that the Defendant is an impulsive and hot-tempered individual with low frustration tolerance, poor emotion control and inadequate problem solving ability, who tends to act hastily and pays no heed to the consequences of his actions.  The clinical psychologist opines “For him, psychosocial stressors, like rejection, abandonment, and provocation are likely to bring him anxiety and intense discomfort and therefore he tends to demonstrate exaggerated emotionality which appears to be closely related to the development of current offending behavior.  It is obvious that he has been adversely affected by some subcultural attitudes as he deeply believes that violence is the only means to deal with his problems.  His insight into his problematic attitudes also appear to be poor.  However, he does not impress me to have suffered from any major psychopathology at this stage.  His risk of recidivism of violence related offence exists unless he could deal with his poor emotion control and violence related cognitions.”  In paragraph 11, the clinical psychologist concludes “he appears to have no remorse for his misdeeds.  Motivation to stop his offending behavior is also assessed to be low”.

8.The letters in mitigation put before me from the Defendant and his family members emphasize that the Defendant has been in custody since his arrest in early March, 2010, almost 7½ months, and his wife PW4, has since forgiven him and has visited him frequently whilst he has been detained.  They have since reconciled.  They each have shortcomings and are willing to try to change themselves for a better future and so they can take care of their two young sons.  The Defendant has said that he will seek a proper method to resolve differences rather than resorting to violence.  The Defendant is the sole breadwinner for his family, and with his being imprisoned, his parents now have a heavy financial burden.  The clinical psychologist in the psychologist’s report said that he believed that psychological service focusing on his mood management, problem solving abilities and violence prevention would be beneficial to the Defendant though the clinical psychologist opined that the Defendant’s motivation to change was impressed to be rather limited at this stage.

9.The Defendant’s family and friends have also attended in Court to show their support of the Defendant.

10.Counsel for the Defendant submitted that the Defendant by his pleas on 3 of the 4 charges has shown his remorse for what he did that night to both PWs 1 and 4.  He surrendered himself to the police the following day and he co-operated with the police when he was interviewed.  In respect of the false imprisonment charge that he denied, he was out of control and snapped when he saw PW4 with PW1, the man she was allegedly having an affair with and thus forced her onto the van.  The length of the false imprisonment was not lengthy and she eventually was willing to go with him to his parents’ home to discuss their relationship.  I do not accept that the Defendant just went out of control.  He knew that PW4 would be in the vicinity and expected that she would be with PW1.  It is clear that there was planning on the part of the Defendant before he went to meet PWs 1 and 4 at the Lok Wah Street Playground.  He had asked 2 others to join him and he had borrowed a van to take them there.  He admitted when interviewed under caution that he had gone to the park with two others to attack his wife’s boyfriend, he had assaulted PW1 from behind with the metal tyre bar.  When interviewed under caution, he said that he could not suppress his anger and it was because of his anger that he assaulted PW4 in the van, and the assault was such that it resulted in the injuries that can be seen on the photographs of PW1 exhibited, and she had a fracture to her nose.  He subsequently telephoned PW1 using his wife’s mobile phone and claimed that he was a member of the Sun Yee On Triad Society and challenged PW1 to meet him is TST.  He knew PW1 would be there because he had read from PW4’s ‘facebook’ site on the computer that PW4 was going to her mother’s home in the Tsz Wan Shan area for a meal and he expected that PW1 would be with her.

11.I view the offences to be serious ones.  It was a planned and armed attack on PW1 by more than one person late in the evening.  It is only by the greatest good fortune that PW1 was not more seriously injured.  The injuries sustained by PW4 cannot be described as ‘not serious’ – she suffered a fracture to her nose – one has only to view the photos of her injuries to see the extent of her injuries.  Again, it’s the greatest good fortune that there has not been any permanent injuries.  The manner in which PWs 4 and 5 were forcefully put on the van and driven off would have been a terrifying experience for the 2 young women.

12.As pointed out in the Psychologist’s Report, his risk of recidivism of violence related offence exists unless he could deal with his poor emotion control and violence related cognitions.  The clinical psychologist concluded “he appears to have no remorse for his misdeeds.  Motivation to stop his offending behavior is also assessed to be low”.

13.Taking all these matters into account, it is inevitable that a prison sentence is the only appropriate one.

14.For offences such as these, there are no guidelines.  Each case must depend on its own facts.  In recent years, the number of cases where violence has been used to resolve domestic conflicts has been on the rise.  The use of force under any circumstances cannot be tolerated.

15.Counsel has submitted in aid in mitigation the family circumstances of the Defendant.  However, ‘family hardship which is usually attendant upon the conviction is to be viewed as part of the price the accused must pay for his crime’: HKSAR v. Li Kwok-ching MA 1132/2005. Those who commit offences should keep in mind ‘the principle that the adverse effect of imprisonment upon an offender’s family is not normally a factor to be taken into account’: HKSAR v. Chan Kin-chung [2002] 4 HKC 314 at p. 321.  Silke VP said in R. v. Chan Hon-yuen Cr App 392/1988 “Family circumstances are matters which a wise man would take into consideration before he commits an offence and not after”.

16.I am told that PW4 has now forgiven the Defendant.  She was the victim with the more serious injuries.  That PW4 has forgiven the Defendant is evident from the letter she has written on his behalf, where she blames her own behavior as a cause for what the Defendant did.  Insofar as PW1 is concerned, I am not told his views.

17.Public interest demands that offences of this nature be visited with the imposition of a term of imprisonment.  In R. v. Tsui Mei-ying [2002] 4 HKC 689 at p. 691, it was said that the forgiveness of the victim counted for little because of the terrible injury and its probable consequences to the victim.  The courts have also held that where crimes of violence occur against a domestic background, ‘the courts cannot be deflected from their duty of imposing sentences appropriate to the gravity of the offence’: R. v. Buchanan [1980] 2 Cr App R (S) 13 at p. 15.  Woo JA indicated in HKSAR v. Wong Siu-kwan Cr App 166/2001:

“While it is true that a sentence cannot be tailored according to the views of the victim because of the intervention of the state and it is a matter for the court which will have to consider a wider sphere of public interest as well as reasoning and precedent, the court should have regard to what the victim has to say, relating to how the offence was committed, how seriously he was hurt, mentally and physically, how he has been affected by the offence, and whether the imposition of a particular sentence would add to his distress and concern, especially when the victim’s views are rational and intelligent.”

18.I have borne in mind all these matters in determining sentence.

19.On count 1, I take as a starting point 18 months’ imprisonment, discount this by one-third to reflect his plea of guilty and sentence him to 12 months’ imprisonment.

20.On count 2, the Defendant has been convicted after trial and he has shown no remorse.  He is sentenced to 2 years’ imprisonment.

21.On count 3, I take as a starting point 2 years’ imprisonment, discount this by one-third to reflect his plea, he is sentenced to 16 months’ imprisonment.

22.On count 4, I take as a starting point 9 months’ imprisonment, discount this by one-third to reflect his plea, he is sentenced to 6 months’ imprisonment.

23.Although these are all separate and distinct offences, they all occurred on the same day and could be said to be all related.  I therefore order that the sentences be served concurrently.

24.By his present conviction, the Defendant is in breach of a suspended sentence for an offence involving violence also involving PW4.  I can see no reason not to activate the suspended sentence. The suspended sentence of 2 months’ imprisonment imposed in KT3386/09 is activated, to be consecutive to the terms I have imposed.