HKSAR v. Wong Yik Man and Others

DCCC 1113/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1113 OF 2010

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Reasons for Sentence

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Introduction

1.D1–D3 face various charges for a course of torture perpetrated on a female victim (“V”) between 21 and 22 March 2010.  D2 and D3 plead guilty whereas D1 pleads not guilty but convicted after trial of some of the charges.   

2.At the time of the offences, D3 was 23.  D1 was 17 whereas D2 16.  V was 22.  D1 was D2’s girlfriend.  D3 was D2’s friend.  V was D2’s friend.  V came to know D1 and D3 through D2.  D3 was the mastermind.  She either took the lead, or instructed D1 and D2 in what ways, as the case may be, to deal with V.  Within 46 hours, V was tortured on and off, apparently because she had failed to repay debts owed to them. 

Charges and facts

3.In the 1^st Charge, assault occasioning actual bodily harm at a beach, D1 and D3 burned V’s thighs with lighted cigarettes.

4.In the 2^nd Charge, theft at a park, D1 discarded V’s empty wallet acting in concert into a river there.  It was not recovered.

5.In the 3^rd Charge, common assault at the park, D2 and D3 acting in concert hit V with punches and kicks.

6.In the 4^th Charge, section 17 wounding in a hotel room, D2 and D3 acting in concert used a hanger to hit V, used a cutter to slash her wrist, cut off half of her eyebrow, and used a lighter to burn her nipples.  They forced her to bare her upper body for photos, which were later uploaded onto her Facebook.  D1 was convicted of common assault as she had slapped V’s face twice. 

7.In the 5^th Charge, false imprisonment, D2 and D3 acting in concert detained V in a TV cabinet for about 3 hours.  The cabinet was originally for a cubic fridge and was less than 3 feet at each dimension.  This no doubt entailed a corresponding crouching posture within the confined space throughout the detention. 

8.In the 6^th Charge, section 17 wounding, D2 and D3 acting in concert wounded V with hangers and an aluminum pipe in D3’s flat.

9.In the 7^th Charge, false imprisonment, D2 and D3 acting in concert detained V by tying her hands with a chain cum belt to the handle of a cabinet for about 3 hours in D3’s flat.   

10.In the 8^th Charge, causing wasteful employment of the police, D1 and D3 acting in concert framed up V for stealing a cell phone.  The police only came to know it was a false report after some investigation. 

Effect on V

11.Medical evidence and photos showed V’s injuries, not permanent albeit hideous, as follows:

(a) Cigarette burns on thighs and feet;

(b) Bruises over left shoulder, back and thighs;

(c) Cut marks on wrist dorsum of left hand;

(d) Bilateral nipple burn marks;

(e) Haematoma over right parietal region of the scalp.

12.The taking of photos in V’s naked state and her half eyebrow and the uploading of such onto her Facebook were no doubt a grave humiliation.   

Personal background and mitigation put forward

13.D3 was 23 at the time of the offences.  She is now 24, of F.5 level.  She was unemployed at the time of the offences.  She has a theft record in 2007, resulting in probation for 18 months.  In 2010, after the commission of the present offences, she was fined, acting in concert with D1 and D2, for making off without payment of the karaoke bill on a few days prior to the present offences.   

14.Her counsel seeks to convince me that community service is an option.  He submits that she had lost herself in the 2 days spanning the offences.  I wonder whether there is or was any sign of psychiatric illness.  He informs me in the negative.  I am still looking in vain for the reason behind her losing herself.  In my judgment, she was infuriated because V did not repay debts to her.  She tortured V because she was infuriated.    

15.D2 was 16 at the time of the offences.  He is now 17, of F.4 level.  He has a superintendent’s caution for robbery in 2009, a record for theft and another for making off without payment of the said karaoke bill.  Both brought him into the Rehabilitation Centre. Both the Training Centre and the Rehabilitation Centre regard him mentally and physically fit for detention either way but the overall assessment recommends the Rehabilitation Centre.    

16.D1 was 17 at the time of the offences.  She is now 18.  She has attained F.3 and completed a two-year course on commerce at Hong Kong Institute of Vocational Education (IVE).  She had barely commenced another business course in September 2010 when she was put into custody.  She has a superintendent’s caution for theft.  A few months after the present offences, she was fined for making off without payment of the said karaoke bill.  Upon her counsel’s request, I have called for a medical report to probe into her claim of a thyroid illness.  The report does not, however, confirm or disconfirm her claim.  At the end of the day, I think this condition is not going to affect the sentence she may face.  The Rehabilitation Centre regards her suitable for detention there.

Sentencing considerations

No sentencing tariffs

17.There are no sentencing tariffs for any of the offences here.  For D1 and D2, other institutions under CSD suitable for their age are viable options apart from jail.  In my judgment, the most culpable part ought to be the 2 instances of wounding and false imprisonment.  Mr. So, counsel for D3, has outlined some sentencing examples.   

Examples of section 17 wounding sentences

18.In HKSAR v Lo Man Yiu, Gary DCCC 910/2008, the defendant punched and kicked his cohabitant.  She was bruised in her face, arm, hand, knee and shin.  Her wrist and rib were fractured.  A starting point of 2 years was adopted.

19.In 香港特別行政區訴廖俊宜DCCC 955/2010, the defendant tried to stop his girlfriend from attending an interview to be a model.  He assaulted her on the head, face and neck and seized on her neck.  Her head, face and neck were bruised and swollen.  He tried to strangle her.  She lost consciousness and he summoned help.  She soon came to.  The court took a starting point of 15 months.       

20.In HKSAR v Tang Tsz Yeung DCCC 365/2010, the defendant had separated from his wife.  One year later, she was seen to have a close relationship with a male.  The defendant abducted her onto a van.  She was assaulted on board, resulting in peri-orbital bruise, nasal bridge bruise, upper and lower limb swelling and abrasion and nasal bone fracture.  The court took a starting point of 2 years for the wounding charge. 

21.In香港特別行政區訴袁明華DCCC 1410/2009, the first defendant, acting in concert with 4 others, assaulted the victim, who spoke foul of the first defendant’s girlfriend.  The victim suffered injuries to the eye, face, neck, head, arm, chest and back.  He had fully recovered at the court hearing.  The court took a starting point of 12 months.     

Examples of false imprisonment

22.In HKSAR v Yau Chun-man DCCC 840/2008, the defendant detained the victim until his family repaid his gambling debts from Macau.  The court adopted a starting point of 2 years.

23.In HKSAR v Lui Chun-wa DCCC 802/2010, the court drew from the case of HKSAR v Lim Hai Bun, Benny CACC 213/1999 to take a starting point of 3 years for a detention to enforce repayment of a Macau gambling debt.   

24.In Tang Tsz Yeung (above), the court took a starting point of 18 months for the false imprisonment charge based on the Defendant’s detention of his separated wife on the van.   

25.In HKSAR v Lo Kam-ho Daniel DCCC 796/2010, the defendant, aged 23, tied and gagged his ex-girlfriend in a failed attempt to resume their close relationship.  The court had to expressly stress that it would consider an immediate sentence of imprisonment but an exceptional sentence, 18 months’ probation, was given instead because it was satisfied that the offence was committed in a situation which was exceedingly psychologically demanding to him. 

26.In HKSAR v Chan Sai Tong DCCC 989/2009, the defendant tied up and gagged two salesladies present in the shop.  He asked them to get the shop owner to meet him as he had a score to settle with the shop owner’s husband, who operated a successful gambling business in Macau.  He lost his wife and son because he had lost at gambling.  Not long afterwards and before anyone came to meet up, he fled.  The court took a starting point of 18 months. 

Sentencing D1–D3

27.D3 played the dominant role in all aspects throughout.  D2 carried out her instructions without qualms.  D1 took part in lesser aspects, sometimes on her own, sometimes acting in concert with them. 

28.I find it in the best interest of D1 and D2 and the public to place them in the Rehabilitation Centre.  This is the order I make for all their charges.

29.D3’s sentences are to be reduced by one-third because of her pleas of guilty.  There are no other mitigating factors.  The respective starting points and after-reduction sentences are as follows:

(a) On 1^st Charge, assault occasioning actual bodily harm, the starting point is 6 months, down to 4 months.

(b) On 3^rd Charge, common assault, the starting point is 6 months, down to 4 months;

(c) On 4^th Charge, section 17 wounding, the starting point is 18 months, down to 12 months;

(d) On 5^th Charge, false imprisonment, the starting point is 18 months, down to 12 months;

(e) On 6^th charge, section 17 wounding, the starting point is 18 months, down to 12 months;

(f) On 7^th Charge, false imprisonment, the starting point is 18 months, down to 12 months;

(g) On 8^th Charge, causing wasteful employment of the police, the starting point is 3 months, down to 2 months.

30.It is highly debatable whether the offences formed part and parcel of a single transaction viewed as an ordeal of over 46 hours.  I am inclined to think they were separate instances of torture but shall make adjustments by totality as follows:

(a) 1^st, 3^rd, 4^th and 6^th Charges shall be concurrent among themselves;

(b) 5^th, 7^th and 8^th Charges shall be concurrent among themselves but wholly consecutive to 1^st, 3^rd, 4^th and 6^th Charges.

31.The overall length of all sentences shall be 2 years.