HKSAR v. Lee Kwok Lam and Others

DCCC 1340/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1340 OF 2011

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Reasons for Sentence

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1.D1 was convicted after trial of 1 count of conspiracy to wound with intent to do grievous bodily harm (charge 1); 1 count of possession of offensive weapon (charge 2) and 1 count of dangerous driving (charge 3).

2.D2 pleaded guilty to 1 count of conspiracy to wound with intent to do grievous bodily harm (charge 1) and one count of dangerous driving (charge 4).

3.D3 pleaded guilty to 1 count of conspiracy to wound with intent to do grievous bodily harm (charge 1) and 1 count of being a member of a triad society (charge 5).

4.D4 pleaded guilty to 1 count of conspiracy to wound with intent to do grievous bodily harm (charge 1)

D1

5.The facts upon which D1’s convictions are based are set out in details in the Reasons for Verdict.

D2, D3 and D4

Summary of Facts as admitted to by D2, D3 and D4

6.PW1’s family owns an ancestral home in Shenzhen. Some time in 2010, plans were made by the village elders for re-development which involved the demolition of PW1’s ancestral home. There was disagreement between the village elders and PW1 as to compensation. Electricity and water supply to PW1’s home had later been cut and the door prized open. PW1 was told that if he did not agree to the demolition, he would be at a great disadvantage.

7.On 15^th September 2011, D1, together with D2, D3 and D4 took 2 vehicles and arrived at outside the fire station on Wa Tai Road. D1 drove a Mazda alone while D2 drove a Lexus, carrying D3 and D4.

8.When the Mazda and the Lexus were first spotted by Police officers who were hiding in ambush near the area, they carried licence plates of PX5009 and PZ4368.

9.After a short while, D2 and D3 got off the Lexus and approached D1. The 3 of them chatted with each other. D2 and D3 then returned to the Lexus. One of the observing Police officers approached the vehicles and saw that the license plates of both the vehicles had been changed. They became LN5963 on the Mazda and HD9233 on the Lexus. Ambushing Police officers were alerted.

10.D2 tried to escape by reversing the Lexus suddenly, colliding with the Police vehicle that had moved in to block it from behind. The Lexus stopped after the collision. D3 and D4 were found to be in the Lexus sitting in the front and left rear passenger seat respectively. The door to the Lexus was opened and D2 was subdued. As a result of the driving by D2, one Police vehicle was slightly damaged. No officer was injured.

11.A search was conducted and the following items were found from the Lexus. One walkie-talkie which was switched on and ready to use, 4 caps, 4 pairs of labour gloves, a surgical mask, a pair of fake registration number plates HD9233, two 18-inch beef knives with handles wrapped with bandages (one found underneath D3’s seat, another found underneath D4’s seat, both were exposed and visible to all the passengers of the Lexus), and a coloured printout of 2 photos of PW1 with his nickname, full address and telephone number written on the back (found inside the glove compartment).

12.D2, D3 and D4 were arrested immediately. D2 and D4 remained silent under caution.

13.D3 made a full confession under caution. D3 admitted at scene that his big brother asked him to get on the Lexus to ‘carry out a task’.

14.In the subsequent video recorded interview, D3 admitted, inter alia, that he is a member of Wo On Lok triad society and his big brother is ‘Ah Shu’. He had joined Wo On Lok about 14 years ago.

15.At about 11pm on 14^th September 2011, D3 received a call from ‘Ah Shu’ asking him to carry out a task the next day. At the instructions of ‘Ah Shu’, D3 arrived at a restaurant the next morning and met there with his acquaintances D2 and D4.

16.The 3 of them then got into the Lexus. D3 saw the walkie-talkie and the beef knife in the car. D3 also saw D2 using the walkie-talkie to communicate with a male. The male, through the walkie-talkie, asked them to chop someone. D3 knew that the Mazda and the Lexus had stopped outside the fire station to wait for further instruction.

17.The position where the 2 cars had stopped was about 1.7km from PW1’s residence. It would take about 1 minute 45 seconds to go there driving at a normal speed.

18.The items seized from the vehicles were examined and D3’s DNA was found inside a pair of labour gloves found from the Lexus.

19.PW1 confirmed that his photographs on the coloured printout were taken at the village in mainland China where the ancestral home dispute had taken place. PW1 had however never seen the photos before this incident.

20.D2, D3 and D4 admitted that at the material time, they had conspired together to unlawfully and maliciously wound PW1 with intent to do to him grievous bodily harm with the knives found in the Lexus.

Mitigation

D1

21.Counsel for D1 first of all adopted the submissions of Mr. Percy in mitigation. D1 has one previous conviction for possession of dangerous drugs.

22.The defendant is 39 and has been working as a truck driver earing about $18,000 per month. The money has gone to taking care of his children and girlfriend. Mr. Davies submits that D1’s commission of the offences was out of character and that he is highly unlikely to re-offend. In relation to the dangerous driving charge, Mr. Davies’s view is that the driving manner was not of the most serious kind.

D2

23.D2 has 11 previous convictions dating back to the 1980s. His last conviction was for ‘claiming to be a member of a triad society’ in December 2008 when he was sentenced to the DATC at the Kwun Tong Magistracy. There are no convictions similar to the present charges.

24.D2 is 38 years old, divorced and lives at home with his 76 years old mother. D2 was the driver of the Lexus. It is submitted that he was not the mastermind of the conspiracy, that there is no evidence that he knew PW1 or the dispute behind between PW1 and the villager elders.

25.Mr. Percy agrees that the conviction for conspiracy to wound with intent must be visited with an immediate custodial sentence. He however points out that the unlawful agreement was never executed and that there was no evidence either from the summary of facts or the finding of evidence in D1’s trial that PW1 was at home that morning.

26.In relation to the dangerous driving charge, Mr. Percy points out that the dangerous driving was just one single reversing action and then D2 stopped the car. The dangerous driving charge would have been brought in the magistracy but for the conspiracy charge that D2 is also charged with. The maximum sentence for dangerous driving is that of 3 years’ imprisonment or fine, and disqualification for not less than 6 months in the case of a first conviction, which it is for D2.

27.Mr. Percy also asks that the sentences should be made concurrent.

D3

28.D3 is 27, single and he lives with his mother. D3 was working as a transportation worker. He has only one criminal conviction record for common assault in 2004 when he was fined $4,000.

29.Mr. Percy points out that but for D3’ full cooperation and confession, there would not have been a charge for being a member of a triad society. The maximum sentence for this is 3 years’ imprisonment or fine of $100,000 for a first of conviction of its kind.

D4

30.D4 is 23, single and he lives with his family. He used to work as a transportation worker at the Cheung Sha Wan vegetable market. D4 has 2 previous convictions. One for Acting as a member of a triad society in 2004 and one for assaulting a Police officer in November 2008 when he was sentenced to 12 months’ probation. D4 had never been sentenced to imprisonment before.

31.Mr. Percy points out that D4 was not the mastermind of the conspiracy and that he was just taking instructions.

Sentence

Charge 1

D2, D3 and D4

32.There are no sentencing tariffs in relation to the offence of wounding with intent to cause grievous bodily harm. There is no evidence to suggest who is the mastermind of this conspiracy. Given that all the defendants had agreed to wound PW1, I find them equally culpable.

33.The defendants do not know PW1. They do not hold any grudges against PW1. Mr. Percy submitted that these are mitigating factors. I find otherwise. The fact that the defendants agreed to wound someone whom they did not know and did not have any dealings with make them cold blooded attackers. It would appear that they agreed to hurt someone just because their big brother ordered them to do so.

34.Being a conspiracy, what they were going to do was premeditated. They went prepared, in two cars with walkie-talkies for communication purpose, they have caps, surgical masks, gloves. The knives were readied and they gathered just 1.7 km from PW1’s residence to await instructions. What they had agreed to do is horrific in nature.

35.I find that a proper starting point for D2, D3 and D4 in relation to charge 1 is that of 4 years’ imprisonment. I grant the full one third discount and reduce the sentence to that of 32 months’ imprisonment.

Charge 1

D1

36.As mentioned above, there are no sentencing tariffs in relation to the offence of wounding with intent to cause grievous bodily harm.

37.There is no evidence to suggest D1 being more or less culpable than the rest of the defendants in the conspiracy.

38.There is no evidence that D1 knew PW1 or that he held any grudges against PW1. Having found that D1 had conspired with the others to wound with intent, it must be inferred that D1 was instructed to carry out the conspiracy by some other person.

39.What D1 had conspired to do is a calculated and cold blooded attack on someone he did not know, but for some reason he had agreed to harm.

40.I find that in relation to charge 1, a starting point of 4 years imprisonment is appropriate for D1. Since he is convicted after trial there is to be no discount to his sentence.

D2’s charge of dangerous driving

41.I agree with Mr. Percy that the facts of this charge are relatively minor. I will adopt a starting point of 6 months’ imprisonment, reduced to 4 months in recognition of his guilty plea. D2 is disqualified from driving for 6 months from today.

D3’s charge of Being a member of a triad society

42.I agree with Mr. Percy that but for D3’s confession there would not have been a case against D3 on this charge. I am also of the view that if this charge was to stand alone, D3’s case would have been dealt with in the magistracy level. Nevertheless, being a member of a triad society is a serious offence and I find that it calls for an immediate custodial sentence. Given that this is a first offence of this kind committed by D3, I will adopt a starting point of 9 months’ imprisonment, reducing it to 6 months’ imprisonment in recognition of D3’s plea of guilty.

Totality for D2 and D3

D2

43.I find that the act of the driving was not part and parcel of the conspiracy to wound. D2 was driving in that manner so as to try to avoid arrest by the Police. Bearing in mind the principle of totality, I will order that 2 months of the dangerous driving sentence be served consecutively to the sentence of charge 1. D2 is therefore sentenced to a total of 34 months’ imprisonment.

D3

44.I find that D3’s participation in the conspiracy to wound must have some connection to his being a member of a triad society. I will order that D3’s sentences to be served wholly concurrently.

Charge 2

D1

Possession of offensive weapons

45.D1 is 38 years old, therefore the maximum sentence for this offence is that of 3 years’ imprisonment.

46.The weapons were possessed for the purpose of wounding PW1 that day. They are 18-inch long beef knives adapted to injure with their handles wrapped with bandages so as not to leave any fingerprints. Although the quantity is not large, it is still a bad case of possession of offensive weapons.

47.I will adopt a starting point of 2 years’ imprisonment. Since D1 is convicted after trial of this count, there is to be no discount in his sentence.

Charge 3

48.The maximum sentence for dangerous driving is that of 3 years’ imprisonment and a fine, plus a mandatory period of disqualification. This is D1’s first conviction for dangerous driving, as such the minimum period of disqualification is 6 months.

49.D1 had driven the Mazda to outside the fire station and stopped the car. He had changed the licence plate. He was obviously awaiting further instructions. When he was blocked off by the cars and PW6 shouted “police, get off”, he must have realized that their conspiracy had been exposed. That was why he tried to drive away. Yet, even though he had already been blocked by 3 Police vehicles, he still maneuvered his car and collided with the white lorry and the Police vehicle in the back.

50.I find that this manner of driving calls for an immediate custodial sentence. I find that a proper starting point is that of 6 months’ imprisonment. D1 is disqualified from driving for 6 months from today.

Totality for D1

51.I will order that the sentence in charge 2 to be served concurrently to that of charge 1. I will order 3 months of the sentence in charge 3 be served consecutively to the rest of the sentence. D1 is therefore sentenced to 4 years and 3 months’ imprisonment.

D1’s Suspended sentence

52.At the time of the commission of the charge 1, D1 was just 4 days shy of the 1 year suspension period he had received in relation to the possession of dangerous drugs charge. I find that in view of the nearness to the end of suspension, that suspended sentence should not be activated.