HKSAR v. Wong Chung Man

DCCC40/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 40 OF 2003

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Reasons for Sentence

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1.The defendant has pleaded guilty to three charges today:

(1) first, being wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap.212;

(2) secondly, theft, contrary to section 9 of the Theft Ordinance, Cap.210;

(3) thirdly, failure to surrender to custody without reasonable cause, essentially absconding, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap.221.

2.The facts are as follows;

On 5 November 2001, just over 10 years ago, the victim, who was 17 at the time, was with four friends just after midnight in the Tseung Kwan O area. They heard a shout and turned to see four persons running towards them, each holding a knife. I have no evidence before me of the type of knife or size of knife.

3.The victim and his friends turned to run, but the group managed to catch up to the victim, whilst the others escaped.  The victim was chopped all over his body by the group, with knives.

4.The defendant asked PW1 where he belonged, meaning to which triad society, and the victim did not answer.  The defendant claimed to be “Lo Sun”.  The defendant was 27 years old at the time.  The group then left the victim.

5.However, the defendant returned alone, and upon seeing the victim using a mobile phone, he took his mobile phone and warned him not to make any phone calls.  According to the facts, the victim was trying to make a police report.  Obviously, he needed help, but was unable to when his phone was taken by the defendant; hence, the theft charge.  When the defendant was arrested, he denied the charges under caution.

6.Not long after the arrest, the defendant was identified in an identification parade by the victim as well as his friends.

7.The defendant was bailed before trial and, come the trial date in May 2003, he failed to answer his court bail and absconded.

8.The victim was admitted into hospital for 10 days.  He sustained serious injuries, including:

(1) five wounds over his body, which included his leg, his back and his arm;

(2) and a deep wound about 10-centimetres in length on the anterolateral aspect of the right knee, the front of his knee, which caused the underlying patella tendon to be cut completely, causing the victim to lose extension of his right knee.

9.An emergency operation was carried out for repairing this tendon, and at the same time his other wounds were stitched.

10.Six months later, he was seen at a medical appointment.  It was clear he could walk independently but had mild thigh muscle wasting.  I have seen photographs of his injuries not long after they were stitched.  This week, the victim told police officers that he has not suffered any permanent injury, but obviously, still feels the effect of the knee injury because he experiences numbness and discomfort when walking.

11.In September this year, the defendant surrendered himself to Kwun Tong Police Station and he has been in custody since.  Under caution, he explained he absconded because at the time of his trial, his son was very young, being only 1 year old, and he needed to care for his family.  He told the police he is surrendering now because he wants to set a good example to his son, showing that one should bear responsibility for one’s wrongdoing.

12.The defendant was even at that time not a man of clear record.  He had many previous convictions, some including violence, but none as serious as wounding with intent.

13.Clearly, there is a triad element involved in this case.  There was a gang attack on an unprovoked group and this group were armed with weapons; knives.  The victim and his friends had no weapons.

14.For a section 17 wounding with intent offence, the maximum sentence would be life imprisonment.  For offences of these nature, there are no guidelines.  However, from the facts in this case, it would fit into a category of between 3 to 12 years’ imprisonment.  Each sentence would be case-specific.  What is relevant here is that the attack was unprovoked, the defendant was armed with a knife, and the victim’s wounds were serious.

15.I have referred myself to one recent authority, CAAR 2/2010, Secretary of Justice v Yu Yat Sang.  In that case, the facts were similar in that the attack was unprovoked, serious wounds were suffered, a chopper was used, and the Court of Appeal found a 5½-year sentence appropriate.

16.Here, in this case, I accept it was not a chopper but a knife, and when comparing the victim’s wounds in that case and this case, in this case the wounds were not so serious, so I will not take as high a starting point.

17.Having heard mitigation, the defendant’s background, the fact he has family support (they are here in court today), the facts of the case that I find relevant to sentence, and lastly, the defendant’s plea.  I also take into account the defendant absconded for a period of over 8 years, which is a long time.  In these circumstances, a term of imprisonment would be appropriate for failing to answer bail.

18.Accordingly, for Charge 1, I will take a starting point of 4 years’ imprisonment. 

You pleaded guilty; you are entitled to a discount of one-third. For Charge 1, you are sentenced to 2 years and 8 months.

19.For Charge 2, the theft charge, I take a starting point of 12 months and discount that by one-third for your plea.  For Charge 2, you are sentenced to 8 months’ imprisonment.

20.For Charge 3, I take a starting point of 9 months’ imprisonment.

21.You pleaded guilty; you are entitled to a discount of one-third.

Charge 3, you are sentenced to 6 months’ imprisonment.

22.Charges 1 and 2 will be served concurrently. That is a total of 2 years and 8 months.

23.For Charge 3, of the 6 months, 4 will be served consecutively to Charge 1, and 2 months concurrently to Charge 1.

24.That would mean a total, for three charges, of 3 years’ imprisonment