HKSAR v. Wong Ka Ying and Another

DCCC349/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 349 OF 2011

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Reasons for Sentence

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1.The 1st defendant has pleaded guilty to Charge 1, offering to traffic in a purported dangerous drug, contrary to section 4A of the Dangerous Drugs Ordinance, Cap. 134.

2.The 1st and 2nd defendant have pleaded guilty to Charge 3, a charge of inflicting grievous bodily harm, contrary to section 19 of the Offences Against Persons Ordinance, Cap. 212.

3.Both defendants have also pleaded guilty to Charge 4, a section 17 offence of the same ordinance, attempting to cause grievous bodily harm with intent against the same victim as Charge 3. 

4.The 2nd defendant has pleaded guilty to Charge 5, dealing with property known or reasonably believed to represent proceeds of an indictable offence, contrary to section 25 of the Organised and Serious Crimes Ordinance, Cap. 455. 

5.On 8 October 2009, PW1, the victim, wanted to purchase some ketamine.  He called a friend and was told that someone would contact him.  Later the 1st defendant contacted PW1 and found out he wanted 3½ grammes of ketamine.  The middle person was somebody called “Ah Lee”.  The 1st defendant could not obtain any ketamine, so instead of telling the victim that there would be no transaction he wrapped up some salt purporting it to be ketamine.  He arranged to meet the 2nd defendant before he met the victim.  These defendants picked up the victim in a taxi. 

6.Once aboard the taxi the victim handed $400 to the 1st defendant thinking there was a proper drug transaction about to take place.  However, instead of a drug transaction the victim was subject to a severe beating by both defendants.  He told the police that he was accused of having snatched the girlfriend of “Ah Lee”, the middleman.  The 2nd defendant told the taxi driver to take them to Chai Wan and stop by the seaside. 

7.The victim’s hands were loosely tied with the shoulder strap of a bag.  They got out of the taxi and pushed him towards the sea.  He was forced or fell into the sea.  His hands were still tied together.  The taxi driver left and made a report to the police.  The victim was able, obviously, either to free himself or to swim to the shore and sought help. 

8.The 1st defendant, in a record of interview, admitted this is what happened that evening.  It was he that suggested throwing the victim into the sea.  It was he that tied up the victim’s hand with a shoulder strap of his own bag, and he told the police that he told the victim to jump into the sea, which he then did.  He shared the $400 with the 2nd defendant. 

9.The 2nd defendant, also in a record of interview, made similar admissions.  He says that when the victim got into the taxi and gave the money to the 1st defendant, the 1st defendant suddenly assaulted him.  He says he did not know why or what was happening, but he joined in to beat the victim.  He admits that he received $200 from the 1st defendant.  This is the subject of Charge 5.

10.The victim’s injuries were serious.  I have two medical reports before me.  The injuries he suffered are summarised in the Summary of Facts.  He received bruising and swelling over his right eye.  He had multiple abrasions over his face.  The central front skull bone was depressed, with a haematoma formed.  The range of movement of his left shoulder was significantly decreased.  He suffered from a bilateral corneal abrasion. 

11.The 1st and 2nd defendant are not men of clear records.  They have poor records, the 1st defendant having 11 previous, with 5 relating to drugs, but no similar offence relating to violence.  The 2nd defendant has 6 previous convictions, of which 4 are related to violence.  In 2007 he was convicted of two counts of section 19 wounding, a section 39 offence, and a section 10 robbery offence. 

12.Having looked at the Summary of Facts agreed by the defendants there is no doubt that this is a serious case.  Where Charge 1 is concerned, on his own admission the 1st defendant clearly would have trafficked ketamine if he had been able to obtain some ketamine.  But as he could not, he committed an offence under section 4A of the same ordinance. There are no guidelines for this offence, but on indictment the maximum sentence would be 7 years.  The beating received by the victim from the 1st and 2nd defendant was serious, unprovoked and cowardly.  To then tie his hands up after a severe beating and force him into the sea is even more serious. 

13.Sentencing for an attempt to commit an offence would be no different from the actual offence.  It is very fortunate that he was able to swim to shore and not suffer any more serious injury.  There was no reason for this attack.  There is no evidence that “Ah Lee” held a grudge against the victim or asked the defendant or defendants to assault the victim on his behalf.  If there was particular bad blood against the victim and “Ah Lee” I am sure the victim would not have called “Ah Lee” looking to buy drugs from him.  It was a gratuitous attack and beating which makes it even more aggravating.  Perhaps the beating was an attempt to detract from the fact that there was to be no drugs transaction.  There is no good mitigation anyone could have put forward on behalf of these defendants except to say their plea today shows remorse.

14.For wounding charges there is no customary sentence or tariff guidelines.  Sentencing will be case-specific and dependent on the facts of each individual case.  But this is one of the more serious cases that I have seen.  I have seen photographs of the victim’s injuries at the time of the attack, as well as two months later.  Although he may not be permanently disabled, two months later he was still suffering from bi-frontal headaches and periorbital pain.  Those photos taken two months later still show evidence of the aftermath of the beating.

15.I have heard mitigation on behalf of the defendants, including their background, and heard that both are remorseful, hence their pleas today.  The 1st defendant has written a letter to the court explaining his actions, expressing remorse and apologising to the victim.  I have considered its contents, what I have heard today and the pleas.  As well as taking all that into account I will also take into account the fact that this was an unprovoked attack of two against one.  The injuries received were serious.  The facts of the case were serious.  There may have been no weapons nor were the defendants armed, but they did tie his hands up, force him into the sea after a severe beating.  I do not distinguish either defendant’s roles.  I find them to be equally culpable. 

16.After having considered all of the factors I have referred to I find the following sentences appropriate.

17.For 1st defendant, Charge 1, I will take a starting point of 2 years and 6 months.  The defendant will receive a discount of 10 months for his plea of guilty today.  Charge 1 will be a sentence of 1 year and 8 months.

18.For Charge 3, the 1st and 2nd defendant both face this charge.  I take a starting point of 2 years and 6 months.  Both defendants have pleaded guilty and will receive a discount of 10 months. Charge 3 will attract a sentence of 1 year and 8 months. 

19.Both defendants have pleaded guilty to Charge 4.  I will take a starting point of 4 years and 6 months.  Both defendants will receive a discount of 18 months for their plea today.  Charge 4 attracts a sentence of 3 years' imprisonment. 

20.The 2nd defendant has pleaded guilty to Charge 5, and I will take a starting point of 2 years' imprisonment.  The defendant is entitled to a discount of 8 months for his plea and will be sentenced to 1 year and 4 months for Charge 5.

21.These charges arose in one evening and out of one incident.  I will order that all charges be served concurrently.  Each defendant is sentenced to a total of 3 years' imprisonment.