HKSAR v. Lo Ka Chun and Another

DCCC 1022/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1022 OF 2013

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Reasons for Sentence

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1.The two defendants have pleaded guilty to three charges, the 2nd accused pleading guilty to two offences contrary to Section 17 of Cap.212 and the 1st accused pleading guilty to one charge contrary to Section 19 of that ordinance.

2.The charges arise out of a dispute that escalated into violence in a bar in Causeway Bay.

3.The events occurred in the evening of 29 July last year.  The victims were the 1st and 2nd prosecution witnesses, who are a couple.  They went out for the evening to this bar for the usual drinking and singing, and the first prosecution witness was with the 1st and 2nd defendants, playing finger games and such like. 

4.The 1st defendant was there with his wife and they had a dispute and at some point the first prosecution witness tried to mediate between them and the 1st defendant became emotional, apparently.

5.Shortly after that, the 2nd defendant held up a beer glass bottle and hit the first prosecution witness on the head with it.  This broke the bottle and caused PW1’s head to bleed. 

6.The 2nd defendant also grabbed PW2’s head - that is, PW1’s girlfriend - punched her face with his hand, hit her head with a hard object, after which she heard the sound of breaking glass.  The 2nd defendant continued to hold her hair and hit her face with his hand.

7.This time the 1st defendant and a male stepped forward and threw some glass cups at PW1.  His head was hit and he raised his arms to protect himself.  PW1 was hit by a hard object on the head and fell onto a sofa.

8.This attack caused injuries.  The first prosecution witness was unconscious for what is described as an unknown duration immediately after the attack.  He regained consciousness after his admission to the A&E at Ruttonjee and Tang Shiu Kin.  He had headache, nausea, dizziness, blurred vision in the left eye.  He had a number of wounds, laceration wounds: anterior scalp of 4 cm; left face of 2 cm; left forehead of 4 cm; and on the chest wall and clavicle, 5 mm. 

9.The wounds were sutured or treated.  He discharged himself.  He defaulted follow-up appointments.  There are three scars on his face, so it was residual scarring.

10.The second prosecution witness was taken to hospital after the attack.  She had a 2-cm scalp laceration, some swelling and tenderness, a 1-cm laceration on the right elbow, tenderness and bruising on her right hand.  She was described as treated conservatively, discharged on the same day.  There appears to be no residual damage to her.

11.The review of the facts concerning the incident itself can be viewed as unpremeditated.  The weapons used - that is, a glass bottle and cups - were weapons of opportunity; things that were lying around.

12.The injuries were fortunately not very severe, although the first prosecution witness does have some residual scarring.

13.Both defendants’ criminal records were put before the court and they both have convictions for violence in their record.

14.The 1st defendant has five previous convictions in total.  The two most relevant are the last two.  In 2011, he received 4 months’ imprisonment for wounding, contrary to Section 19 of Cap.212, and more recently, on 28 November last year, 2013, for an offence contrary to Section 17 of that ordinance he received a sentence of 3 years’ imprisonment and he is currently serving that sentence.

15.The 2nd defendant has a number of convictions, a total of seven previous appearances in court, has two related to violence, one for which he was put on probation in 2003, and in 2009 an offence contrary to Section 19 of wounding, 14 days’ imprisonment, a short period of imprisonment.

16.For both defendants, it can be seen that their previous sentences of imprisonment for offences of violence have not deterred them from continuing to commit them.

17.There are antecedent statements in respect of both defendants.

18.1st defendant is a married man.  He has worked as a transportation worker.

19.2nd defendant is currently single, also transportation worker.

20.I heard mitigation on behalf of both defendants.

21.The 1st defendant has come from a broken family and he said he had been introduced to drinking and going to karaoke by his father when he was young and at times his father inflicted violence upon him and so he thinks he learnt his bad habits from that, and we know that the antecedents show the defendant went to prison in 2011.  On his release he went to Australia, met his future wife there and worked for about a year in that country. 

22.He is clearly remorseful, attributes his involvement in violence in these offences to his use of alcohol.  He is already serving a lengthy service.  He tells me he is determined to change his ways and has acknowledged the problem that he has.  He has come here today and admitted the facts and pleaded guilty, showing remorse, clear remorse.

23.The 2nd defendant, although he has a less serious involvement in offences of violence, has on this occasion committed the more serious offences.

24.He is a single man, but he has a girlfriend who has become pregnant and he will become a father before too long.  He is remorseful; again, has clearly admitted his involvement in these matters in full.

25.Turning to sentence, in respect of the sentence of the defendants, I bear in mind that each of them is remorseful and they pleaded guilty.

26.I will deal with the defendants in the order in which they appear in court.

27.The 1st defendant has pleaded guilty to one offence contrary to Section 19. 

28.Insofar as his case has an aggravating feature, of course, his previous involvement in offences of violence.  This is his third offence, for which he has appeared before the court and he has only recently been imprisoned for 3 years in the District Court, that being for the more serious Section 17 offence.

29.I do bear in mind as well the nature of his involvement in this offence, but I do consider that a further sentence of imprisonment is inevitable as a result of his plea of guilty to this offence.

30.This defendant faces the third charge only.  I will deal with this as follows.

31.Taking all these matters into consideration, I will take a starting point for sentence 18 months’ imprisonment.  I will reduce that to 12 months’ imprisonment for his plea of guilty. 

32.I have to have regard to the overall totality of sentencing, as the defendant is serving a lengthy sentence.

33.I will order that 8 months of that sentence run consecutively to the existing sentence and the balance of 4 months concurrently.

34.The 2nd defendant faces two offences, contrary to Section 17 of the ordinance, in respect of his attack on the two victims.

35.I already mentioned the features in respect of those offences.

36.There is an established sentencing approach to offences contrary to Section 17 of this ordinance.  There is a guideline for sentence and that is the sentences for these offences range between 3 to 12 years’ imprisonment as a starting point.

37.It is a serious feature of these cases that, of course, the intent to caused grievous bodily harm. 

38.I bear in mind in sentencing this defendant that, as I have said, the offences appear to be unpremeditated.  The offences were weapons of opportunity and the residual injuries appear to be not serious and the defendant himself, of course, is not a stranger to convictions of offences of violence and imprisonment for those offences.

39.I consider in sentencing this defendant I will take the lowest point on the suggested guideline for sentencing, or that of 3 years’ imprisonment.

40.The defendant has pleaded guilty. so I will reduce that sentence to one of 2 years’ imprisonment.

41.So, in each of Charges 1 and 2, there will be a sentence of 2 years’ imprisonment.

42.The offences were committed at the same time.  I will order that they run concurrently, so it is a total of 2 years’ imprisonment.