HKSAR v. Kong Wai Lun

DCCC 410/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 410 OF 2012

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Wounding" (Charge 2; alternative to Charge 1, which is "Wounding 17") and a charge of "Failing to surrender to custody without reasonable cause" (Charge 3).

Summary of Facts

2.About 4:00 am on 11 March 2012, PAU Chun-hang (a boy aged 12) and his schoolmates were chatting in the 7-Eleven Store named in the charge ("the Store"). All of a sudden, 3 males (including the defendant and NGAN Kwan-yiu) rushed in and dragged PAU out of the Store. 

3.There was a group of 8 males outside the Store, 4 of them were holding metal pipe-like long objects.  The defendant, NGAN and the group of males assaulted PAU on his head, hands and legs with long objects for about 10 seconds.  The assailants then fled.

4.PAU was sent to the hospital for treatment and was discharged on the same day.  He sustained the following injuries :-

(i) a 1.5 cm laceration on left forehead;

(ii) marked swelling on left face; and

(iii) mild right knee tenderness with full range of movement.

5.On 14 March 2012, the defendant was arrested in Sheung Shui.  Under caution, he admitted, inter alia, that he assaulted PAU with bare hands.  He received a call from NGAN asking him to go to the Store to assault someone.  He met NGAN, LING On-lun and other males at a park.  They then proceeded to the Store.  The defendant and NGAN went inside and dragged PAU out of the Store. The defendant admitted having kicked PAU once in the Store.  NGAN and others assaulted PAU outside.  The defendant joined the attack by punching PAU twice with bare hands.

6.The CCTV footage of the Store captured the defendant and NGAN dragging PAU out of the Store.  At an identification parade held on 27 March 2012, PAU positively identified the defendant as one of the assailants.

7.The defendant was charged and was brought to Fanling Magistracy on 7 May 2012.  He was granted bail.  The case was later transferred to the District Court.  The defendant was required to appear in the District Court for mention on 6 July 2012, but failed to do so.  A warrant of arrest was issued against him.

8.The defendant was re-arrested in Fanling on 25 April 2013.  Under caution, he claimed that he knew he had to appear in court; he absconded because he was scared of imprisonment.

Mitigation & Sentence

9.The defendant has 1 conviction record, which is related to violence. He is now 20, single and resides with his family in a public housing unit in Yuen Long.

10.Defence lawyer Mr. WONG submitted that the defendant had no hatred against PAU. He did not plan the attack; he just wanted to help NGAN, which was a foolish thing to do. The defendant was cooperative with the Police and made frank admissions. He is now remorseful. During the absconding period, the defendant remained in Hong Kong and worked as a delivery worker earning $8,000 per month.

11.This case involves a gang attack on a 12-year-old boy organized by NGAN. Metal pipe-like objects were used as weapons. I have perused the Reasons for Sentence in respect of NGAN and LING. I note the reason for the attack being NGAN was insulted by PAU in November 2011. On the offence date, NGAN saw PAU on the street by chance and summonsed friends to attack PAU.

12.The law is plain that no one is allowed to take the law into his own hands to seek revenge against another person. What the defendant and the other assailants did was brutal, uncivilized and an affront to the public conscience. It was clearly an organized (if not pre-meditated) savage attack on PAU. The young age of PAU is an aggravating feature. It is most fortunate that PAU has recovered fully and sustained no permanent injuries.

13.I am aware that sentencing of wounding offences is case specific and there is no tariff as such; however, in this case, an immediate custodial sentence is inevitable for the defendant. I note that NGAN, being the organizer of the attack, received 20 months' upon a guilty plea to a "Wounding" charge; and LING, who was convicted of "Wounding 17" after trial, was sentenced to Training Centre.

14.Having considered all aspects of this case, I take the view that for Charge 2, a starting point of 2 years' imprisonment is appropriate. A one-third discount is given for the guilty plea, reducing the sentence to 16 months. Apart from this, I see no other mitigating factors which warrant any further discount. The sentence is therefore 16 months' imprisonment.

15.For Charge 3, I adopt a starting point of 15 days' imprisonment. A one-third discount is given for the guilty plea, reducing the sentence to 10 days. Apart from this, I see no other mitigating factors which warrant any further discount. The sentence is therefore 10 days' imprisonment.

16.Charges 2 and 3 are separate and distinct. Charge 3 could have been completely avoided had the defendant appeared in court in accordance with his bail terms. Notwithstanding the totality principle, I order the sentences for Charges 2 and 3 to run consecutively. Thus, the total prison term for both charges is 16 months and 10 days.