HKSAR v. Kwok Chak Yam and Another

DCCC 1105/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1105 OF 2012

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Reasons for Sentence

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Charges

1.D1 and D2 plead guilty to a joint charge of wounding under s. 19 of the Offences against the Person Ordinance, Cap. 212.  D1 pleads guilty to a charge of criminal damage under s. 60(1) of the Crimes Ordinance, Cap. 200.

Facts of 1^st Charge

2.At about 1:10 a.m. on 30 September 2012, a group of 10 people including D1 and D2 entered an amusement game centre known as “Sands Game” situated at Richmond Plaza, Jaffe Road, Hong Kong.  One of them shouted,   “Who is Hop To Chai?” in a foul language.  They then attacked PW1, who was playing computer games, with fists and kicks as well as a chair and a stool for about 30 seconds.  PW1 remained conscious but suffered bleeding at the back of his head, pain at the right side of his face and injuries to his arms.  He called the police. 

3.The attendant medical officer found abrasion, erythema on his right thigh and left arm with 2 lacerations on his head.  Suture was done.  He was discharged on the same day of admission.  He was granted 6 days’ sick leave. 

4.On 1 October 2012, after arrest and caution for the attack, D1 admitted his presence but denied having assaulted PW1.  Based on the image captured by the CCTV of Sands Game of an assailant wearing a particular T-shirt, the police seized from his home the same T-shirt which he admitted to have worn at the time of the incident. 

Facts of 2^nd Charge

5.At 2:49 a.m. on 30 September 2012, D1 together with other people went to Neway Karaoke Box at Sugar Street, Hong Kong for entertainment.  They took up Room 114.  At about 4:00 a.m., one of them disputed their bill with the manager PW3.  At about 5:45 a.m., 6 to 8 people including D1 ran to the lobby and damaged a television screen, a PlayStation game machine and an advertisement board.  They left without paying the bill.  It was later revealed that 2 microphones and glasses in Room 114 had been damaged.  The total cost to fix the damage was about $11,600.   

6.The CCTV at the premises captured the image of D1 leaving the premises. 

D1’s personal background and mitigation

7.D1 is 19 years of age, of F. 1 education level.  He had worked in various eateries in a span of 3 years after leaving school.  He was sentenced to probations in February 2011 (E/256/11) and October 2011 (E/3533/11) respectively for common assault. E/256/11 concerned a boy whose sister had not repaid a debt to a schoolmate. He was brought to a park by a group including D1.  D1 slapped his face once in the ensuing confrontation.  E/3533/11 concerned a boy who was attacked by D1 together with 4 others due to a trivial dispute as the boy and the boy’s girlfriend walked past a playground in the Western District.  The boy suffered injuries from their fists and kicks.  The present offences are in breach of the second probation (E/3533/11). 

8.I am told that he beat up PW1 as he was told to do so without any personal reason. 

9.He has paid into court a sum of $14,600 as voluntary compensation to PW1 ($3,000) and Neway Karaoke ($11,600). 

10.His counsel urges me to consider the Detention Centre apart from the Training Centre.  CSD’s suitability report regards him unsuitable for the Detention Centre because of his liver problem.  The Training Centre is regarded as suitable. I understand from his counsel that he wishes to be sent to prison instead of the Training Centre.        

D2’s personal background and mitigation

11.D2 is 24 years of age, of F. 3 education level.  He had never held a job.  For a number of years since his father’s death, he had received little guidance from his mother.  He would demand money from his mother, a menial worker.  Among his numerous convictions for which he was given probation or sent to DATC or prison, there were 4 for violence as follows:

(1) Assault occasioning actual bodily harm (2002);

(2) Criminal damage (2008);

(3) Assault occasioning actual bodily harm (2008);

(4) Wounding (2010).

12.I have obtained more information about him from his Background Report.  In 2000, he was assessed to be a mild-grade mental retardate by an educational psychologist.  He was then placed in a special school.  He often skipped classes.  He mixed with dubious peers after school.  He had become a triad member and engaged in gang fights.  To make matters worse, he has had a habit of drug abuse.         

13.In Court I am told that he beat up PW1 as he was told to do so without any personal reason.  His Background Report revealed that he committed the present offence to help his triad followers to settle conflicts with others.    

Statutory penalty

14.The maximum for s. 19 wounding is imprisonment for 3 years and for criminal damage is imprisonment for life.  There are no sentencing guidelines for either offence.   

Imprisonment or other options

15.Section 109A of the Criminal Procedure Ordinance, Cap. 221, provides:

(1) No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.

(1A) This section shall not apply to a person who has been convicted of any offence which is declared to be an excepted offence by Schedule 3.

16.The offence of s. 19 wounding is an excepted offence by Schedule 3.  Imprisonment is thus not a deferred option. 

Detention Centre or Training Centre

17.According to s. 4(2)(b) of the Detention Centres Ordinance, Cap. 239, a person under the age of 21 shall be detained for between 1 month and 6 months, the exact duration to be determined by the Commissioner of CSD having regard to his health and conduct. 

18.According to s. 2 of the Training Centres Ordinance, Cap. 280, a person under the age of 21 shall be detained for between 6 months and 3 years, the exact duration to be determined by the Commissioner of CSD. 

Sentencing D1 and D2

19.It was an unprovoked attack of a single victim by a gang of 10.  They were looking for “Hop To Chai”.  The attack had a triad cause.  A chair and a stool at the premises were used.  The victim suffered some injuries not of a serious nature.  The criminal damage to the karaoke was in revenge for an unabated bill.  There was no extensive damage.     

20.I am satisfied that it is in the best interest of D1 and the community to have him placed in the Training Centre for the 2 charges together.  His probation (E/3533/11) is hereby discharged.   

21.I do not see it a mitigating factor D2’s being a mild-grade mental retardate.  Over the past 10 years, he has had enough mentality gained from his experience of incarceration to warn him off the wrong side of the law.  His repeat convictions for violence over the years should be an aggravating factor.  I take 27 months as the starting point for the 1^st Charge.  I reduce it to 18 months in recognition of his plea of guilty.  There are no other mitigating factors.  He is sentenced to 18 months’ imprisonment.