HKSAR v. Cheng Ka Ho

DCCC625/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 625 OF 2012

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to two offences of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212 and to one offence of assault occasioning actual bodily harm, contrary to Common Law and punishable under Section 39 of that same Ordinance.

2.You admitted the facts and I convicted you. 

3.Briefly what happened is this: at about 10 pm on 26 May last you, together with PW1 to PW3, attended the Free Fall Pub and Café at Lockhart Road, Wanchai.  Also present was PW4.  At about 1 am the next day you were playing a finger game called “Caimei”, you spat on PW1 who became angry and then you spat on him again.  You had to be separated from PW1.  You then left being angry.  At about 2 am you returned with six males.  PW1 to PW3 were sitting together on a sofa.  PW2 to the left; PW3 in the middle and PW1 to the right.  You and the males picked up bottles of beer and wine glasses from the table near the sofa and threw them.  PW1 bent down and put his hands on his head and PW2 leaned over to protect him from attack.  PW1 felt he had been hit by hard objects.  After the attack finished broken glasses were found close to the sofa.  PW1, PW2 and PW3 were all injured.

4.Before the attack PW4 was sitting near the sofa and saw you enter the pub, walk right up to PW1 and speak foul language.  You were followed by a group of males.  PW4 tried to stop you and the males from attacking PW1 but he was pushed aside by a male.  PW5 saw you enter with the males, she saw PW2 shielding PW1 when you and the males attacked by throwing glasses and bottles.  You and the males left sooner after that.  She estimated the attack to last about a minute; you were the last to leave.

5.PW1 and PW2 went to hospital and PW1 was found to have left scalp oozing from a contusion wound.  This was dressed.  PW2 had a 2 centimetre laceration to his right eye-brown requiring five stitches.  On 25 May PW2 and PW3 went to a different hospital.  PW2 was found to have bruising on the right forearm, abrasions on the left elbow and a wound below the right eye-brow.  PW3, bruises on the right index finger and right upper back, mild abrasion on the right elbow and forearm.

6.You were arrested a few days after the incident and denied assaulting PW1 to PW3 under caution.  You admitted going to the pub initially with PW1 to PW3.  You asserted that PW1 splashed water on you and slapped your face once.  You left as you were angry.  You returned an hour later and slapped PW1’s face before leaving alone.  PW1 to PW5 positively identified you in two identification parades conducted by the police.

7.You are a man of hitherto clear record.  Mr Lai entered mitigation on your behalf.  I am obliged to Mr Lai to presenting that mitigation in written form, it is extremely helpful.  He told me that you are 29 single but you have a girlfriend.  You were educated to secondary level; you are employed as a Sous Chef at the Renaissance Hong Kong Harbour View Hotel earning some $13,000 per month.  You have been contributing $4,000 a month to your family; you are of hitherto of clear record.

8.You were acquainted with PW1 especially but also seemed to know all the victims.  On the night of the offence you had gone out together and you were drinking heavily.  There was a minor altercation with PW1.  You and PW1 give different accounts of what occurred in that altercation.  You left the pub and went to another bar where you met the men whom you knew by sight but not name and there unfortunately you continued drinking and then you and your acquaintances returned to the original pub.

9.You say that there was an initial exchange of foul language and you had lost control of yourself and started throwing bottles and glasses.  Quite rightly, and of some importance, Mr Lai reminded the court that you had gone there without weapons.  The attack lasted less than one minute and there was no intention to cause very serious harm.  PW2 and PW3 sustained injuries as bystanders, PW1 was the target. 

10.Mr Lai also submitted and I accept this that in fact none of the victims suffered either life threatening or permanent injuries.  He emphasised that at no time did anyone from the attacking group use the bottles or glasses to hit the victims directly.  Only a small number of items were thrown.   

11.Mr Lai then went on to produce five letters of support.  Two were from your superiors at the hotel; one letter was from a restaurant owner who wanted to employ you and, in fact, would offer you a job upon release.  One was from yourself and in that letter you apologised to the victims and the final and perhaps most important one was from PW1 who forgives you and asks that the court to return a lenient sentence.  I can assure you that I have considered all these letters carefully and taken into account their contents.  Mr Lai told me that you had indeed in fact continued to work at the hotel until the day before and worked with PW1 without any problem.

12.He submitted to court two sentencing authorities.  The first was HKSAR v Choy Nin-shing Court of Criminal Appeal 172 of 2010.  In that case the defendant was convicted after trial of two counts of wounding with intent, two counts of assault occasioning actual bodily harm and one count of common assault.  He was sentenced to two years and eight months’ imprisonment.  In that case Mr Lai submitted the assaults were more serious as one of the assailants used a two foot metal rod and the defendant, himself, used a glass bottle to hit directly on the head of the victim.

13.The second case was HKSAR v Lam Hon Wing Court of Appeal, Criminal Appeal 253 of 2003.  In this case the defendant was convicted after trial of one offence of wounding with intent and two counts of actual bodily harm.  He pleaded guilty to another different matter.  A starting point of two years imprisonment was adopted and 21 months actually imposed.  Again, Mr Lai submits that the facts are more serious than the present case in that the defendant and six others returned to a bar where they had had a dispute with a barman.  They had armed themselves with wooden poles and collapsible stools.  They attacked the barman and two customers.  The injuries in the wounding were more serious than in the present case. 

14.In conclusion Mr Lai submitted it is clear that given your previous good record you were not prone to the use of violence. Such premeditation as there was in this offence resulted from your intoxication.  The gravity of the attack and the injuries suffered were not of the worst.

15.I turn now to the sentence.  I note your clear record and accept it supports the proposition that the incident is clearly out of character.  The incident itself is clearly out of character.  The letters of support fortify me in this view also.  It is of some relevance - and I have taken this into account - that PW1, the main target of the assault but the least injured both forgives you and pleads for leniency on your behalf.  It is also abundantly clear that drink played a large part in this offence, albeit it is a case of self induced intoxication. 

16.There is premeditation in the assault given that enlisted the help of six other males and returned to the scene of the previous incident.  It is also an aggravating feature that the attacks took place in the public bar.  However, it does seem to me to be neither here nor there as to the nature of the first altercation.  This merely explains the background to the assault.  It is of some mitigation that you and your party did not arrive at the bar armed that the bottles and glasses were thrown rather than taken up to hit directly on to your victims.  Also that the attack lasted for less than one minute. 

17.Having said that flying bottles and glasses do have the potential to do enormous damage to victims.  In my opinion it is purely fortuitous that the injuries themselves were not more serious.  The two sentencing authorities produced are of some assistance setting the length of sentence but, of course, each case has to be decided on its special facts.

18.For you, personally, this is a tragic set of events in that you have destroyed, or at least severely disrupted, a very promising career.  It is clear to me that you are well regarded and valued by your bosses and it is of some value that Mr Yu is prepared to employ you on release.  This means that you will have a future.

19.Whilst there are three offences my approach is to treat this as one incident in which three persons were injured to different degrees.  I do accept that the injuries were not too serious and are not permanent.  The following sentences will be imposed. 

20.On charge 1 I take as a starting point 21 months imprisonment reduced to 14.  On charge 2, 21 months reduced to 14 and on charge 3 12 months reduced to 8 months.  All of these sentences will be served concurrently.  That is a total of 14 months’ imprisonment.  I note that you are unable to offer compensation and that matter should be left to a civil court.