HKSAR v. Wong Sui-cheung

DCCC890/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 890 OF 2011

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Reasons for Sentence

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1.D1 stands convicted after trial of one charge of affray, contrary to common law. I have called for pre-sentence report for suitability of detention in Detention Centre (DC), Rehabilitation Centre (RC) and Training Centre (TC).

2.The report is now available.  Full particulars of my finding of the case are set out in my verdict delivered on 14 March this year.

3.In summary, an affray took place around midnight on 5 June 2010 at a footbridge and an open area near Yat Tung Estate, a public housing estate in Lantau.  It was a public place where residents needed to go past in order to go home.  It can be seen in the video recording taken by a resident of the Yat Tung Estate  that, at the beginning of the incident, two groups of youth associated with different triad society of the Lo Sun and 14K, scolded and shouted at each other with foul language after they had argued for a while.

4.Another group of people turned up to join the Lo Sun group.  A fight took place between the two parties and very loud and disturbing noises could be heard.  Two youths of the 14K group suffered serious injuries. 

5.Lee Kwong-pan, a 15-year-old boy at the time, suffered very serious injuries.  He has haematoma and laceration over his head. He subsequently received two surgical operations.  He was unable to talk or communicate when he was transferred to the ICU.

6.MRI revealed extensive cerebral infarcts as a result of the assault.  A medical report dated 5 March this year states that: “he can now walk a few steps with heavy assistance at home.  His mental state is suboptimal.  He is currently not fit for statement yet”.

7.Another victim, Yu Siu-wai also had injures and laceration over his scalp. 

8.I found that D1 was amongst the Lo Sun group which was confronting and scolding with the 14K group at the beginning of the incident.  At one stage, he was seen standing at the very front of his group with his arms folded across his chest when the groups were scolding each other.  

9.He summoned for assistance with his mobile phone.  Later the reinforcement came with weapons including a torch in their hands.  Then the actual fight started.  There is insufficient evidence to prove that D1 actually used violence.  He admitted his presence.  I found that he was present as a party in the fight in a joint enterprise to demonstrate force and to use violence.

Background and mitigation

10.D1 is now 17 years old.  He was 15 and had no criminal conviction when the present offence was convicted.  He had been cautioned by the Police Superintendent for robbery in January 2009 and was placed on Care or Protection Order in December 2009.

11.He now has two criminal convictions.  He was put on CSO for resisting a public officer in November 2010.  Ten days ago on 19 March, he was sentenced by a magistrate in Tsuen Wan Magistracy to detention in a Rehabilitation Centre for an offence of common assault. 

12.D1 was found medically unfit for detention in DC.

He was found suitable for detention in RC and TC. Mr Lee, the intake officer of the Correctional Services Department considered D1 more suitable for detention in a Rehabilitation Centre.

13.In mitigation, Mr Tam, counsel for D1, urges the court to accept the recommendation of the intake officer to make a concurrent order for detention in a RC.  Mr Tam tells me again, the background of the case, that D1 was originally facing trial for wounding with four others in the High Court.  When one of the defendant pleaded guilty to the charge, the case was transferred to the District Court and the charge was amended to affray.

14.He reminds me that although one of the victims suffered very serious injuries, there was no evidence that D1 used actual violence on the victim.  Mr Tam submits mitigation letters from the defendant’s mother, step father and former school principal.  I have paid due attention to the contents of the letters.  Mr Tam tells me that D1’s mother promises to give full support and supervision of D1 when he is released.  

Reason for sentence

15.The maximum sentence for affray is 7 years’ imprisonment.  Sentences for affray vary greatly on their facts.  The court will take into consideration the nature of the affray, the number of participants, its duration, nature of violence, whether weapons are used, whether injures were occasioned and how serious are the injuries.  

16.D1 is now 17.  Section 109A of the Criminal Procedure Ordinance, Cap.221 is not applicable as affray is an excepted offence under schedule 3 of that ordinance.  However, it is still the task of the court to decide what is the appropriate sentence in the interests of D1 and the community. 

17.The present offence is a serious one.  The affray took place around midnight at a public place near a public housing estate.  Two rival gangs with triad background had confronted each other for a considerable time before the fight actually started.  Weapons were used.  There were loud and disturbing noises that no doubt would terrify bystanders of reasonable firmness and courage.  One victim, Lee Kwok-ping, suffered very serious injury. Even two years after the incident, he can only walk for a few steps with heavy assistance at home.  He is not yet fit for making statement. 

18.However, having considered the nature of the case, D1’s age, the degree of his participation in the case, the interest of community and also the observation of the intake officer of Correctional Services Department that a period of disciplinary training coupled with statutory supervision would definitely be beneficial to him, I am of the view that D1 does not have to be in prison.  The question is what alternative is the best option for his reformation. 

19.D1 does not impressed me as being remorseful at all.  He was convicted after trial.  During the interview with Mr Lee, the intake officer, D1 impressed him to be evasive in attitude.  He showed little sense of remorse toward his misdeeds.  It was noted that he had not yet developed any deep insight into his problem.  Mr Lee remarked that: ”All in all, his reflection toward his misdeeds and problems remained superficial”.

20.According to Mr Cheng of Tsuen Wan Probation Office, D1 showed no reflection towards his misdeeds and triad linkage. When he was placed under Community Service Order, he performed unsatisfactorily while doing his unpaid work and required close supervision in completing his work.  He was also tempted to take “Ice” on a few occasions in early 2012.  Mr Cheng said D1 simply learnt nothing from his mistakes. 

21.Mr Lee considered that RC is more suitable for D1.  I will of course give full weight to his view.  However, the recommendation does not bind the court.  The court has the task to find out the best and most appropriate sentence in the interests of D1 and the community. 

22.RC and TC are institutions with different regimes. In the first phase of the program in RC, offenders will be detained for 2 to 5 months.  On the other hand, an offender under a TC Order will be detained for not less than 6 months and not more than 3 years.  In practice, inmates stay for 18 months in detention. Vocational training is provided in the period of detention.  It is not difficult to understand that no doubt D1 would ask for a concurrent order for detention in RC. 

23.In my view, D1 is a rebellious young man, who requires strict discipline and training to bring him back onto the right track.   He had been given chance by way of superintendent caution and Care or Protection Order.  He did not treasure the chances given and committed the present offence at the age of 15. 

24.During the bail period for this offence, he committed two further offences.  He did not perform the CSO satisfactorily and impressed the supervising probation officer that he did not learn from his mistakes.  Again, he impressed the intake officer of the Correctional Services Department during the present remand as evasive, lack of remorse and insight of his problems. 

25.From all these information, D1 has not shown any remorse for a genuine desire to rehabilitate himself.  Given the relatively short period of detention in the RC, I doubt very much whether a concurrent order for detention in RC can effectively impress D1 the price he has to pay for his wrong and bring him back onto the right track.

26.On the other hand, I believe the training, care and discipline provided in the Training Centre, coupled with post-release supervision for up to 3 years would be more useful for his reformation.  I am sure he will benefit from the structured training provided there, so that he can acquire skills for future employment to become a useful member of the community.

27.I am aware of the requirements for a TC Order as discussed in the case of Wong Ping Cheong v HKSAR.  Having considered all the circumstances, I am of the view that a TC Order would be more beneficial to D1 and in the interest of the community.

28.I make order for detention in Training Centre accordingly.  By virtue of section 8 of the Rehabilitation Centres Ordinance, Cap.567, the RC Order shall lapse.