HKSAR v. Ching Pak Ho, Parkol

DCCC 40/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 40 OF 2012

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Reasons for Sentence

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1.The defendant (D1 on the indictment and so termed throughout) was jointly charged with Fung Lai Yee, Winnie and Wu Chu Leung (D2 and D3 on the indictment respectively and so termed throughout) with 3 counts of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap 212 (counts 1 to 3 on the indictment).  D1 also faced a fourth count of claiming to be a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap 151.  At the outset, D1 admitted the four counts on the indictment that he faced, whilst D2 and D3 each denied counts 1 to 3 on the indictment that they faced.  D1 admitted the Summary of Facts in respect of all the charges that he faced and I convicted him on all the charges upon his pleas and admission of the facts.  Sentence was adjourned until the conclusion of the trial of D3, D1 being remanded in custody in the meantime.  The prosecution offered no evidence against D2 in respect of the three counts of wounding wherein she was jointly charged with D1 and D3 and I dismissed counts 1 to 3 against her.  At the conclusion of the trial of D3 on the 3 counts of wounding, namely counts 1 to 3 on the indictment, I acquitted him of the charges that he faced.  Although when admitting the facts, D1 had admitted that D3 was a part of his group and had participated in the assault of PWs 1, 2 and 3, admissions by D1 relate only to D1.  After hearing mitigation from counsel on behalf of D1, I adjourned sentence until today, calling for a background report, which is now before me.  I am told by defence counsel that D1 agrees with the contents therein save for the error in paragraph 3 of the report wherein it was mentioned that he was imprisoned for 3 months for the robbery offence – that should read 3 years. 

2.Facts admitted by D1 disclosed that the incident took place at the Space Bar & Lounge at 25/F, the Hennessy, No 26 Hennessy Road,  Wanchai.  PW1, Wong Ming To, Mandel and PW2, Pak Tim Yee, referred to in the particulars of counts 1 and 2 respectively, were boyfriend and girlfriend at the material time, while PW3 Leung Kwok Hei, referred to in the particulars of count 3, was their friend.  They were in the bar in question in the early hours of 18 February 2011 together with other friends and were sitting at a table inside the VIP Room.  Another group came into the VIP Room subsequently and sat at another table.  D1 and D2 were a part of that group and they were known to PW1 and PW2, as they had all studied together in Australia.  The two groups played together for a time.  At about 0500 hours, D2 started to scold PW2, alleging that PW2 caused trouble.  A fight followed when D1 started to punch PW1.  PW3 tried to separate them, and an unknown male hit PW3’s head with a glass bottle.  D1 punched PW1 while D2 pulled PW2’s hair to prevent her calling the police.  Someone threw a chair at PW2.  D1 hit PW1 at the corner of his eye with a glass bottle.  D1, D2, D3 and another male assaulted PWs 1, 2 and 3 for about 3 minutes.  In the course of the assault, D1 had also claimed himself to be a member of “14”.  A melee ensued, and D1 and his group assaulted and chased after PWs 1, 2 and 3 from the VIP Room into the main bar area and out to the lift lobby, where PWs 1 and 3 were further assaulted with fists and kicks and glass bottles.  The CCTV system of the bar captured a part of what happened in the main area of the bar and in the lift lobby, which CCTV disc was viewed by me during the trial of D3, and D1 can be clearly seen on the recording assaulting PWs 1 and 3, including using glass bottles to assault them, and one in his group can be seen throwing a bar stool at PW2 in the main area of the bar.  Although when admitting the facts, D1 had admitted that D3 was a part of his group and had participated in the assault of PWs 1, 2 and 3, that admission of D1 was not admissible as evidence against D3.  The injuries sustained by PW2 were caused in the main by the bar stool being thrown at her – although D1 did not himself throw the bar stool, it was an attack that he was also a party to and thus jointly liable. 

3.Upon medical examination, PW1 was found to have lacerations on his forehead, right palm and upper lip.  He also lost one tooth and broke two others.  In the medical report of PW1 dated 6 May 2011, his injuries are described as ‘forehead haematoma, laceration.  Left face laceration, upper lip laceration’.  A medical report from the Dental Department of the Queen Mary Hospital dated 30/03/2012 set out the injuries he sustained in more detail – left subconjunctival haemorrhage, sutured lacerations of left periorbital region, nose and upper lip, fractured upper left central incisor with retained root, crown fracture of lower central incisors.  A CT scan showed medially displaced left zygomatic arch fracture. 

4.Upon medical examination, PW2 was found to have a deep laceration at her left middle finger with extensor tendon ruptured.  She cannot now fully stretch her fingers or form a full fist. 

5.Upon medical examination, PW3 was found to have laceration on his left back head.  In the medical report of PW3 his injuries are described as ‘multiple scalp haematoma and laceration.  Forehead swelling and laceration.  Left hand: mild abrasion’. 

6.Photographs of the injuries sustained by PWs 1, 2 and 3 were produced and viewed by the Court.  Counsel for D1 does not challenge that the injuries sustained by each of the victims herein amount to ‘grievous bodily harm’.  Wong JA, in delivering the judgment of the court in HKSAR v Lo Tak Chi, CACC 269/99, said : 

“10. It has been held that to constitute grievous bodily harm, it is not necessary that the injury should be either permanent or dangerous, if it be such as seriously to interfere with comfort or health, it is sufficient, R v Ashman [1858] 1 F & 88. In the decision of the House of Lords in R v Smith [1961] AC 290, Viscount Kilmuir said at p 334 that “grievous means no more and no less than really serious” and that “bodily harm” needs no explanation.”

7.I was satisfied that the injuries sustained by PWs 1, 2 and 3 constitute ‘grievous bodily harm’. 

8.In mitigation, Mr McGowan, counsel for D1, submitted that D1 was truly remorseful, as was reflected by his pleas at the outset, and tendered an apology to the victims on behalf of D1.  He also informed the Court that D1 would pay a total compensation of HK$30,000, ie HK$10,000 for each victim, and this had been accepted by the victims.  Counsel for the prosecution confirmed this.  This further reflects D1’s remorse. 

9.Counsel submitted that what started off as a pleasant evening of entertainment ended up with the present offences being committed when all parties had been affected by alcohol to some extent, and although Counsel accepted that this was not an excuse for the behaviour of D1, it was a reason for his reacting as he did.  It was not premeditated – it was a coincidence that the two groups sat at adjoining tables in the VIP Room, and in the course of the evening, PW1 had been sitting with D1’s group as well.  D1 and D2 were known to PWs 1 and 2 from their student days in Australia.  The incident began with someone suggesting D1 was not the father of the 2 children he had had with D2, which led to accusations flying back and forth, pushing and shoving and then the violence resulting in the present charges.  Counsel also submitted that D1 had surrendered himself to the Wanchai Police Station, which was further evidence of his remorse.  A letter written by D1 expressing his remorse was also submitted. Leniency was sought on behalf of D1. 

10.D1 is now aged 30 years.  His background is set out in great detail in the Background Report before me and I do not intend to rehearse the contents herein.  Suffice to say that his parents divorced when he was young and he spent much of his childhood in Australia with his mother.  Both his parents have been in court to show him their support.  Although not married, he has been in a relationship with D2 and they have two sons, one born in 2006 and the other in 2008.  I am told that as a result of the present offences, D1 and D2 have now separated, and the sons are with D2.  At the time of the offences, D1 was working in a real estate property company.  He has two previous convictions, one in 2007 for possession of arms/ammunition without a licence, namely a stun gun, for which he was ordered to perform 160 hours of community service, the other in 2008 for robbery, for which he was sentenced to 3 years’ imprisonment, albeit that the robbery offence was committed prior to the arms/ammunition offence.  It was because he was fingerprinted and his DNA collected when he was sentenced for the arms/ammunition offence that his DNA was found to match DNA found at the crime scene of the robbery, and he was thus arrested for the robbery offence. 

11.I have carefully considered all that has been urged upon me in mitigation by counsel on behalf of D1, as well as the contents of the background report and D1’s letter.  In my view, the mitigation of greatest weight is D1’s plea, which is indicative of his genuine remorse.  I accept that this was not a pre-meditated attack, but it was an attack in a public place by a group of persons and apart from punches and kicks, bottles were used in the attack as well as a bar stool being thrown.  A viewing of the CCTV recording shows clearly the extent of the assault, and D1 was one of the main assailants. 

12.It is clear from the authorities that there are no sentencing guidelines or tariffs for the offence of wounding with intent.  In Secretary for Justice v Yu Yat Sang, CAAR 2/2010, the court referred to HKSAR v Hau Ping Chuen, [2008] 3 HKC 398, where it was held that the usual range for a section 17 offence was 3 to 12 years’ imprisonment, the wide range reflecting the fact that the circumstances in which such offences were committed were infinitely varied, although that court acknowledged that there might be offences contrary to s 17 of the Ordinance which called for sentences higher or lower than that range. 

13.This was an extremely serious and violent attack in a public place on the victims, involving among other things the use of multiple bottles to assault the heads of two of the victims, a very vulnerable part of the body, and likely to cause life-threatening injuries, although I accept that the bottles and bar stool were already in the premises and not specifically brought there by D1 and his group.  The injuries are well depicted in the photographs of the victims and are also set out in the medical reports of the victims submitted by the prosecution. 

14.Madam Justice Beeson, in HKSAR v Clifford Martin Fran, HCMA 1113/2004, an appeal again sentence in respect of 2 counts of wounding contrary to section 19 of the Offences against the Person Ordinance, Cap 212, said in respect of wounding offences :- 

“20. Offences of this nature demand deterrent sentences. It is from a fracas like this that many deaths have resulted in the past. Patrons in a bar, or citizens in other public areas, are entitled to conduct their lives in peace without having marauding groups seeking retribution for real, or, as is usually the case, imagined insults or injuries. Disproportionate responses to minor disputes or arguments, and unprovoked attacks are all too common in Hong Kong.”

15.As counsel rightly said, for offences of this nature an immediate custodial sentence is the norm.  On each of the wounding charges, I take as a starting point 36 months’ imprisonment, discount this by one-third to reflect the plea of guilty and D1’s remorse, and sentence him to 24 months’ imprisonment on each charge of wounding.   

16.Triad offences are treated seriously and attract at least a short term of imprisonment depending on the facts and the circumstances in which an accused claims or invites someone to be a member of a triad society.  There are no specific guidelines for offences of this nature except that imprisonment is appropriate.  I accept that this is not the worst of such offences – however the claim was made in the midst of an assault.  The purpose of such utterance clearly would be to cause fear to the listener.  D1 claimed to the interviewing officer for the background report that he had never joined any triad society before and he knew a triad figure when he had been imprisoned previously and had been told that he could tell others of their acquaintance should he have troubles in future.  Counsel has submitted that these could be viewed as ‘wild and whirling words’.  I do not think that this utterance can be disregarded.  

17.On count 4, I take as a starting point 9 months’ imprisonment, and discount this by one-third to reflect his plea, and sentence him to 6 months’ imprisonment. 

18.In sentencing, I do bear in mind the totality principle of sentence and the overall criminality of the defendant.  These offences all arose in the same incident.  I shall order that the sentences in all the charges be served concurrently.  I can see no further matters to warrant any further reduction in sentence.