HKSAR v. Leung Wai Sing

(Consolidated)
DCCC1080/2010 & 30/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1080 OF 2010 & 30 OF 2011

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Reasons for Sentence

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The Charges and the Facts

1.The Defendant pleaded guilty to the 4^th charge of “failing to surrender to custody without reasonable cause”, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap. 221, at the beginning of the trial.

2.Then, at the early stage of PW1’s cross-examination, the Defendant, through his counsel, indicated to the court that he intended to plead guilty to both the 2^nd and the 3^rd charges, that is, the subject matters in respect of which PW1 had testified. Pleas were therefore re-taken and the Defendant pleaded guilty to both charges.

3.The 2^nd charge is “false imprisonment” which was laid against the Defendant and three others jointly. The 3^rd charge is “common assault” which was laid against the Defendant alone.

4.The offences arose in this manner. PW1, aged 18, came to know D1 in this case while playing basketball in Wanchai. On 28 May 2010, he received a call from D2 and was asked to meet D1 at D1’s place. PW1 arrived in the premises at about 8:00 p.m. on that day. Upon arrival, he found D1, D2, this Defendant and an unknown Chinese male there. D1 and this Defendant then accused PW1 of assisting another gang in selling drugs. This Defendant then slapped on both sides of PW1’s face, once on each side. This assault is the subject matter of the 3^rd charge.

5.At the time, D1 took away PW1’s mobile phone. When PW1 said that he wanted to leave the premises, D1 and this Defendant did not allow him to do so. They then brought PW1 to the bedroom in the premises. Inside the bedroom, this Defendant took out a knife from the right back of his waist and pointed it close to PW1’s face, threatening to chop and kill PW1 if PW1 tried to leave. As PW1 was frightened, he stayed there.

6.During the course when PW1 was inside the bedroom, he, on a few occasions, requested to leave but was refused by D1 and this Defendant. Eventually, PW1 was allowed to leave the premises at around 6:00 a.m. on the following day. This is the subject matter of the 2^nd charge.

7.This Defendant was arrested on 28 July 2010 and was brought to the District Court on 28 January 2011. At the hearing, this Defendant was granted bail and was required to attend court for trial with the other Defendants on 5 May 2011. The Defendant, however, failed to attend the hearing as scheduled. He was re-arrested on 11 August 2011. This is the subject matter of the 4^th charge.

Mitigation

8.The Defendant is now aged 41 and is single. He has received primary education. Mr. Sadhwani, who acted for the Defendant, told the court that the Defendant had helped in the family’s business of selling fish for over 10 years, earning about HK$8,000 per month. Unfortunately, while the Defendant was being remanded, his father, aged 74 and his mother, aged 76, passed away in December last year and January this year respectively.

9.The Defendant has been before the court on 16 occasions with a total of 17 convictions. The majority of those were “possession of a dangerous drug”. Others included two convictions in respect of “assault occasioning actual bodily harm”; two of “POOW”; one of “resisting a police officer”; and one of “arson”.

10.In mitigation, Mr. Sadhwani sought, on the Defendant’s behalf, to obtain a background report before the court considered the sentence. I am of the view that such is wholly unnecessary given the information which has already been placed before the court and the information disclosed by Mr. Sadhwani in the course of his mitigation made on the Defendant’s behalf.

11.It was said that the deaths of the Defendant’s parents caused the Defendant to feel very depressed and shocked at the time. Therefore, he failed to attend the original trial as scheduled.

12.In respect of the false imprisonment and the common assault charges, it was said that both offences arose on the same occasion and on the same set of facts which would render concurrent sentences appropriate. Although PW1 was held for about 10 hours, the knife was used in the course of the threat for a limited period, not during PW1’s entire detention. Moreover, Mr. Sadhwani emphasized that PW1 did not sustain any actual injury. During PW1’s detention, he was allowed to sit on a chair and he was not tied up or handcuffed. Regarding the slaps on the face, such could be viewed as a minor assault. It was also submitted that the incident did not appear to have caused PW1 any serious concern as PW1 did not report the matter to the police immediately after he was released.

Sentencing Considerations & the Starting Points

13.This is a serious case in which a gang of four had falsely imprisoned PW1 for about 10 hours. While PW1 was kept in the premises, he was accused of assisting another gang in selling drugs, and in the course of PW1’s detention, this Defendant pointed a knife close to PW1’s face and threatened to chop and kill him. PW1 was only a young person of 18 at the time. The fear which he must have experienced during that period of time is not difficult to imagine.

14.On the facts of this case, no doubt, a deterrent sentence is necessary. Given that this Defendant played an important role in the incident and he was the one who took out the knife and who uttered the threatening words to PW1, I consider a starting point of 33 months to be appropriate for the false imprisonment charge.

15.In respect of the common assault charge, I accept that it was a minor assault. However, it has also to be borne in mind that the assault took place during PW1’s false imprisonment, and undoubtedly, the assault was meant to exert pressure and generate fear on PW1. Having considered all the relevant facts, I take 3 months to be the appropriate starting point for this charge.

16.Concerning the 4^th charge, the “failing to surrender to custody”, I note that the Defendant did not surrender himself. He was arrested in August 2011, three months after his jumping bail. His explanation of feeling shocked and depressed because of his parents’ deaths was, of course, no excuse for his not attending the trial. On the facts of this case, I consider a starting point of 6 months to be appropriate.

Sentencing this Defendant

17.Having carefully considered all that was said on the Defendant’s behalf in mitigation, there is nothing, other than his pleas, which would warrant any reduction in sentence.

18.While the Defendant would receive a one-third reduction in respect of the 4^th charge as he pleaded guilty at the very beginning, he would not be given the same reduction in respect of the 2^nd and the 3^rd charges. Having considered the stage at which the Defendant offered his pleas, I take the view that he should be allowed a reduction of about 25% in relation to these two charges.

19.For the 2^nd charge, the term of 33 months is therefore reduced to 25 months.

For the 3^rd charge, the term of 3 months is therefore reduced to 2 months.

For the 4^th charge, the term of 6 months reduced by one-third is 4 months.

The Totality Principle

20.I accept that the 2^nd and the 3^rd charges arose from the same set of facts and it is appropriate to order the terms to run concurrently. The 4^th charge, however, is a totally distinct offence and, in principle, it should be ordered to run wholly consecutively.

21.Nevertheless, applying the totality principle, I consider that an overall term of 28 months should sufficiently reflect the Defendant’s culpability in these charges. I therefore order that while the terms in respect of the 2^nd and the 3^rd charges are to run wholly concurrently, 3 months of the 4-month term in respect of the 4^th charge are to run wholly consecutively to the terms for the 2^nd and the 3^rd charges, making a total of 28 months’ imprisonment.