HKSAR v. Chan Siu Kit and Another

DCCC 325/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 325 OF 2010

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DCCC 326/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 326 OF 2010

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DCCC 340/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 340 OF 2010

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REASONS FOR SENTENCE OF CHAN Siu-kit

1.CHAN Siu-kit pleads guilty to various charges arising from an undercover operation codenamed “sidefilter”, where PC 4026 (PW1) infiltrated the Sun Yee On triad society, which operation turned overt in September 2009.

2.In DCCC 325/2010 he pleads guilty to one charge of conspiracy to rob, contrary to section 10 of the Theft Ordinance and sections 159A and 159C of the Crimes Ordinance (charge 2), one charge of possession of offensive weapons, contrary to section 17 of the Summary Offences Ordinance (charge 8) and one charge of theft, contrary to section 9 of the Theft Ordinance (charge 10); in DCCC 326/2010 he pleads guilty to one charge of wounding, contrary to section 19 of the Offences against the Person Ordinance (charge 1) and one charge of conspiracy to wound with intent, contrary to section 17 of the Offences against the Person Ordinance and sections 159A and 159C of the Crimes Ordinance   (charge 2); and in DCCC 340/2010 he pleads guilty to one further charge of conspiracy to wound with intent (charge 3).   

3.Full particulars of the offences are set out in the facts admitted by the defendant. The following is a brief summary of the offences.

DCCC 325/2010

4.In June 2009 when the defendant found out his girlfriend had dated another male he was furious and threatened to beat him up.  The defendant recruited PW1 to help him.  D2 also agreed to help, suggesting that they rob the male as well.  D2 also said he could smuggle stun guns and extendable batons from the Mainland to use in robbing the male.  The defendant preferred to use batons.  Stun guns and batons were smuggled into Hong Kong for use in the robbery, with D2 giving one baton to the defendant.  On arrest in September 2009 six extendable batons were found at the defendant’s home.  The defendant admitted agreeing to rob the male but said the plan was never carried out (charges 2 & 8).  

5.At the beginning of September while attending a birthday party at a bar in Tsim Sha Tsui the defendant told PW1 that he had picked up a mobile phone from the floor of the table next to where they were drinking.  Later the defendant sold the mobile phone for HK$2000 (charge 10).

DCCC 326/2010

6.On the 30th July 2009 the defendant, together with about 10 males, took part in kicking and punching the new boyfriend of D3’s ex-girlfriend.  The boyfriend suffered a 1cm laceration to his forehead (charge 1).  I am told the boyfriend has no permanent disability but does have a scar on his forehead as a result of the attack.

7.The next day a group of 10 males, all armed with water pipes, attacked another male, who as a result suffered fracture to two of his fingers and multiple scalp lacerations.  The extent of his injuries can be seen from the photographs shown to the court.  There were at least six wounds to his head which required suturing.  Fortunately considering this was an attack with weapons to the head, I am again told the male has no permanent disability as a result of the attack.  On arrest the defendant admitted he had agreed to join in the attack of a 14K youngster who had grudges over staring affairs the previous night.  The defendant armed with an iron pipe did not take part, as the victim had already been attacked by the time he arrived (charge 2). 

DCCC 340/2010

8.On the 6th July 2009 the defendant and PW1 were asked by D1 to attack a drug trafficker who had been very rude to him.  They met at D1’s home on the 8th July when they planned to attack the male with knives but to chop him on his body and limbs only and not above the neck, so that the blows would not be fatal.  On the 9th July the wife of D1 took the defendant and PW1 to the building where the male resided.  The plan to attack the male was however postponed (charge 3).

9.In passing sentence I take into account everything said on behalf of the defendant by Mr Kan, including the role played by the defendant in the various offences and that prior to these offences the defendant had a clear record.  I have also read all the letters submitted by the defendant his wife, past employers and colleagues.    

Starting points

DCCC 325/2010

10.In R v MO Kwong-sang [1981] HKLR 610 the Court of Appeal held that the appropriate sentence for an ordinary case of armed robbery where a knife or other dangerous weapon is carried and displayed is         5 years and 7 years should be considered where physical violence is used.  The sentence to be imposed must however be appropriate for conspiracy to commit robbery (see HKSAR v LIN Jinhuang CACC 171/2008).  Whilst weapons were obtained for use in the robbery the plan was not carried out.  The defendant says that out of his own conscience he decided not to carry out the plan.  Taking into account no actual robbery took place I take as my starting point 3 years imprisonment.  For possession of six extendable batons I am satisfied the appropriate starting point is 12 months imprisonment and for the opportune theft of a mobile phone 6 months imprisonment.

DCCC 326/2010

11.For wounding 19, involving 10 persons, no weapons and without serious injury I am satisfied a starting point of 1 year and 6 months imprisonment is appropriate. For conspiracy to wound with intent, also involving 10 persons armed with water pipes, resulting in multiple injuries but none of a permanent nature, I am satisfied a starting point of 4 years imprisonment is appropriate.  The fact the defendant did not actually participate in the attack is no ground to reduce the sentence as he was a willing party going to the scene, armed with a water pipe, intending to participate in the attack.

DCCC 340/2010

12.Had the planned attack been carried out resulting in chop wounds to the body a sentence of no less than 5 years imprisonment would have been appropriate and may well have been substantially more depending on the severity of the injuries. Some steps were taken in preparation for an attack by viewing the building where the male resided.  Whilst the attack was not carried out this was still contemplated having only been postponed.  In the circumstances I take 4 years imprisonment as my starting point.

13.The offences are set against the background that the defendant was involved with the Sun Yee On triad society.  On the 21st December last year the defendant was sentenced by the Kowloon City Magistracy to a total of 9 months imprisonment for one offence of claiming to be a member of a triad society; three charges of acting as a member of a triad society; one charge of possession of an offensive weapon and one charge of attending a triad meeting.

14.I have had the opportunity of looking at the case papers.  The facts agreed by the defendant when he pleaded guilty to those charges on day 9 of the trial have been translated to me.  A background report was called for which I have also had the opportunity of reading.

15.The offences occurred between April and September 2009.          In summary in April 2009 the defendant welcomed PW1 as his brother in the Sun Yee On triad society and promised to render him support.            In May, June and July 2009 the defendant assembled as part of a group to seek revenge on others (“blowing the whistle” in triad jargon).  The target of the May gathering could not be found.  In June the defendant equipped himself with an extendable baton but again the targets could not be located.  In July contact was made with one of the targets but attempts to lure him out failed.  In September 2009 a triad meeting was held where one of the co-accused changed to be the follower of the defendant.

Totality

16.Clearly the defendant was deeply involved in triad related matters and was more than willing, when the need arose, to participate in serious acts of violence.  I am satisfied for the offences the defendant is before the court an overall starting point after trial of 9 years imprisonment is appropriate.   

17.Giving full credit for the pleas of guilty the sentence to be served by the defendant is one of 6 years imprisonment.  I am satisfied this is a meaningful discount from the maximum sentencing jurisdiction of this court of 7 years imprisonment, the prosecution having somewhat surprisingly agreed all three cases be heard together in the District Court.

18.The defendant is sentenced as follows:

DCCC 325/2010

Charge 2 – 2 years imprisonment

Charge 8 – 8 months imprisonment concurrent to charge 2; and

Charge 10 – 4 months imprisonment concurrent to charges 2 & 8.

DCCC 326/2010

Charge 1 – 1 year imprisonment; and

Charge 2 – 2 years and 8 months imprisonment concurrent to charge 1; 2 years consecutive and 8 months concurrent to the sentence in DCCC 325/2010;

DCCC 340/2010

Charge 3 – 2 years and 8 months imprisonment;

2 years consecutive and 8 months concurrent to the sentences in DCCC 325/2010 and DCCC 326/2010.

19.I further order that the total sentence of 6 years imprisonment is to be served consecutive to the 9 month sentence the defendant is now serving.  In my view the defendant was leniently dealt with in the Magistracy, in particular that all sentences were made to run concurrent (see for example HKSAR v SO Chi-wai & another CACC 358/2004,where the court commented that the making of part concurrent sentences was if anything lenient).  I am satisfied a total sentence of  6 years and     9 months imprisonment properly reflects the defendant’s criminality for all offences committed by him between April and September 2009.

Please refer to CACC71/2011, CACC72/2011 & CACC75/2011 for the relevant appeal(s) to the Court of Appeal.