HKSAR v. Azhar Zaman and Others

DCCC 187/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 187 OF 2014

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REASONS FOR SENTENCE

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1.The defendants have pleaded guilty to one joint charge of wounding Mak Chun Man with intent to do him grievous bodily harm, contrary to section 17 of the Offences against the Person Ordinance, Chapter 212.

2.In summary in mid January this year Mr Mak entered into a relationship with Miss Siu Sin Yee.  Miss Siu was the former classmate of D1 and had been his lover for four years during which time she gave birth to two boys.  In December 2013 Miss Siu ended her relationship with D1.

3.Around 11.30 p.m. on the 30 January Miss Siu and Mr Mak went to the 7-11 convenience store in Shan King Estate, Tuen Mun.  On seeing D1 holding a chopper Mr Mak tried to run away but was pushed to the ground by D1.  The three of you then attacked Mr Mak.  D1 used the chopper whilst D2 used an extendible baton and D3 a hammer.

4.All three of you were arrested the next day.  Under caution D2 admitted using an extendible baton and D3 using a hammer.  D2 and D3 then took the police to a meter room where the three weapons were recovered, including the chopper used by D1.

5.In a subsequent video interview D2 admitted, inter alia, being called by D1 and promised a reward of $2-3000 to assault Mr Mak; collecting the hammer, chopper and extendible baton; that he used the extendible baton to hit the legs and afterwards placed the weapons in the meter room. 

6.Under caution and subsequent video interview D3 admitted, inter alia, he was with D2 when D2 received a call from D1 who promised them a reward of $2000 to assault Mr Mak; D1 said he would take a chopper and provide them with a baton and a hammer; D1 gave him a hammer which he used to hit the back of Mr Mak and afterwards placed the weapons in the meter room. 

7.Mr Mak suffered serious injuries for which he was hospitalised for four days including a wound to the head and multiple wounds to the left side of the back and right shoulder with underlying muscle being cut.  All wounds required suturing.  I have read the medical reports and although there are some discrepancies between the reports the extent of the injuries can clearly be seen in the photographs submitted to court.  I am informed that fortunately Mr Mak has fully recovered from his injuries.

8.In HKSAR v Hau Ping Chuen [2008] 4 HKLRD 673 the Court of Appeal referred to the usual range of sentence for wounding with intent being described as 3-12 years.  You are all however young offenders.  At the time of the offence D1 was 19 and D2 and D3 were both 15.   D1 is now 20, D2 is 16 and D3 is still 15. 

9.Section 3F of the Juvenile Offenders Ordinance, Chapter 226 provides that where a person under 16 is found guilty of an offence by a court other than a juvenile court the court shall, unless satisfied that it would be undesirable to do so, remit the case to a juvenile court.   Taking into account the seriousness of the offence and that it is more appropriate that one court sentences all defendants, especially D2 and D3 both being 15 at the time of the offence and their roles in the offence being similar I am satisfied that it would be undesirable to remit the case of D3 to a juvenile court.  I note also Mr Simon Law on behalf of D3 made no application to remit the case to a juvenile court.

10.Section 11 of the Juvenile Offenders Ordinance provides no young person shall be sentenced to imprisonment if he can be suitably dealt with in any other way.  Section 109A of the Criminal Procedure Ordinance, Chapter 221 provides no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  Whilst this provision does not apply to wounding with intent, which is an excepted offence, a court must exercise great care before committing a young offender to prison. 

11.With these provisions in mind I called for background reports from the probation service together with training centre suitability reports to provide me with further information about each of you.  In view of the seriousness of the offence I warned you that even if training centre is recommended this did not mean I would impose such an order. 

D1

12.I have carefully considered everything said on your behalf by Mr Eddie Law together with the content of the mitigation letters and certificates of achievement.  I take into account your young age having turned 20 whilst on remand and that your father died last year. 

13.Although you have a conviction for violence for which you were sentenced to probation I note that was when you were 15.  You appeared in court again in 2012 for an offence of unlawful sexual intercourse with Miss Siu at a time when she was under 16.  On that occasion you were sentenced to perform community service. 

14.The reports reveal that after entering secondary school you were unable to catch up with the school curriculum resulting in your need to repeat Form One.  Instead you idled at home during which time you became acquainted with triad elements and joined the Sun Yee On Triad Society.  You subsequently enrolled at various schools however your performance continued to be poor and you finally quit school without completing Form Four. 

15.While on remand you have managed to behave and observe the institutional rules and regulations.  The assessment officer found you polite in attitude.  You told both the assessment officer and the probation officer that you promise to behave in the future and ask for a lenient sentence.   Today you ask to be sentenced to detention in a training centre.

Offence

16.I am told that you acted out of impulse.  After the separation Miss Siu agreed that you could have custody of the two boys however on the day of the offence she telephoned you saying that Mr Mak told her not to give you the boys.  You then became angry and agitated and attacked Mr Mak. 

17.Whilst there may be a degree of impulse in what you did the attack was clearly premeditated.  Not only were you armed but you also recruited two 15 year old boys, who were also armed, to help you attack Mr Mak.   Mr Law submits there is no admission in the facts as to this recruitment.  That is correct the evidence of what D2 and D3 told the police being inadmissible against you.  However the only inference to draw is that you recruited these two boys to help you attack Mr Mak because you were angry with Mr Mak for not allowing you to have access to your two sons.  There was no other reason for these two young boys to be involved other than to help you.  I note also that you told the assessment officer that you summoned D2 and D3 to assault Mr Mak although you denied promising them a reward for helping you. 

18.Although a period of disciplinary training coupled with statutory supervision is considered beneficial to you taking into account the seriousness of the offence and your character and conduct I am satisfied that a period of training in a training centre would not reflect the gravity of the crime and that such an order in your case would be too lenient (see Wong Chun Cheong v HKSAR (2001) 4 HKCFAR 12).

19.Mr Law has submitted a number of authorities from the 1980s for my consideration. Whilst I have read these cases it is to be noted that sentencing for violence of this kind has generally increased significantly since the mid 1990s (see for example HKSAR v Ling Man Foon CACC 222/2004). 

20.In HKSAR v Hau Ping Chuen the Court of Appeal noting that there were a host of wounding with intent decisions which might be used in favour of a lenient view whereas others favour a stricter view said that, “At the end of the day, a sentencing court obtains a ‘feel’ for the appropriate result by regard to the attitude of courts over a period of time to a great variety of circumstances.”

21.Hau Ping Chuen was an application for review of sentence.  In summary the facts were that at a meeting of indigenous villagers the victim proposed a new practice of allocating invitation cards for villagers to attend banquets.  The proposal was accepted by all except the respondent’s family, who as a result of the proposal would no longer be invited automatically to attend the banquets.  The next day the respondent confronted the victim asking why his invitation had been cancelled.  Dissatisfied with the explanation the respondent took out a knife and attacked the victim.  The victim sustained a 5 cm cut wound over the abdomen and a 5 cm cut wound on his left groin for which he was hospitalised for three days.  Fortunately the victim suffered no long-term ill effects.

22.In describing the respondent’s actions the Court of Appeal said, “…it is clear that the respondent felt aggrieved at what had occurred but his response was out of all proportion to his grievance.  By taking the law into his own hands in this way, the respondent reacted in an extremely dangerous manner, using a knife which was both large and sharp…..we have concluded that the least starting point which could be imposed for an offence as serious as this is 5 years.”

23.The same observations are equally applicable here in that whilst you may have felt aggrieved when Mr Mak said you were not to have the boys your response was out of all proportion to your grievance.  I am however of the view the present case is more serious in that you recruited two young boys to help you and that all three of you were armed with dangerous weapons resulting in Mr Mak suffering more serious injuries.

24.In HKSAR v Kan Wai Man [2004] 2 HKLRD G13 the appellant, aged 27, with the assistance of three others attacked the boyfriend of his former girlfriend with a sharp instrument causing multiple stab wounds.  Again fortunately none of the injuries were likely to have any permanent adverse effect.  The Court of Appeal in upholding a 6 year starting point observed that grown-up men should be able to handle the breaking up of a relationship sensibly and said that such attacks must be deterred. 

25.In all the circumstances I am satisfied a 5 year starting point is appropriate.  If not for your young age I would have considered a sentence higher than 5 years. Giving you full credit for your plea of guilty you are convicted and sentenced to 3 years and 4 months imprisonment. 

D2

26.I have carefully considered everything said on your behalf by Mr Simon Lam together with the mitigation letters.  I take into account your young age having turned 16 last month whilst on remand.

27.The reports reveal that you too started to manifest behavioural problems after entering secondary school.  You acquainted with dubious peers who had triad background and under their influence joined the Sun Yee On Triad Society.  You were first made the subject of a Care & Protection Order in January 2012.  Not long after you were involved in gang fights for which you were given a police superintendant’s caution in March 2012.  Later in the same year you appeared in the juvenile court for robbery and wounding.

28.The Assessment Officer says that during the interview you appeared co-operative in attitude and whilst on remand have managed to behave without committing any disciplinary offence. Claiming you have learnt a lesson you ask for a lenient sentence. 

29.In view of your weak self-control and law abiding concept, a period of disciplinary training coupled with a term of statutory supervision is said to be beneficial to you.  You have expressed the wish this morning to be sentenced to imprisonment.

30.In considering whether a period of training in a training centre would be in your interest and that of the community I have taken into account you were recruited by D1 and to that extent you are less culpable than D1.  This nevertheless remains a serious offence having for reward willingly taken part in an armed attack to teach Mr Mak a lesson. 

31.I have also taken into account that you have convictions in October and December 2012 for robbery and wounding 19.  On each occasion you were placed on probation. Your present conviction places you in breach of those probation orders.  I have read the files of both cases and note that for the wounding you again became involved to teach someone a lesson.

32.Although young your use of violence is a seriously aggravating feature, all three of your offences involving violence.  Taking into account the seriousness of the offence and your character and conduct I am satisfied that a period of training in a training centre would not reflect the gravity of the crime and that such an order in your case would also be too lenient.

33.Whilst this was a joint enterprise to attack Mr Mak as noted earlier your culpability is less than that of D1.  In the circumstances I am satisfied a starting point of 4 years and 6 months is appropriate.  Giving you full credit for your plea of guilty you are convicted and sentenced to 3 years imprisonment. 

34.As already noted your conviction places you in breach of the probation orders imposed in TMCC 700105/2012 and TMCC 700123/2012.  Taking into account the offences in both cases involved violence I am satisfied I should exercise my powers under section 6(6) of the Probation of Offenders Ordinance, Chapter 298 and re-sentence you for those offences.  The offence in TMCC 700105/2012 was the robbery of a mobile phone in the early hours of the morning and in TMCC 700123/2012 was wounding 19 to teach a boy a lesson for being rude to your friend.  Taking into account you were 14 at the time of these offences I am satisfied the appropriate sentences giving you full credit for your pleas of guilty are 16 months imprisonment in TMCC 700105/2012 and 6 months imprisonment in TMCC 700123/2012.  I also discharge the probation order in TMCC 700123/2012.

35.Considering totality of sentence to be served by you I order these two sentences to be served concurrent with 6 months consecutive and 10 months concurrent to the sentence imposed today.  I am satisfied a total sentence of 3 years and 6 months imprisonment properly reflects your culpability for all three offences.

D3

36.I have carefully considered everything said on your behalf by Mr Simon Lam together with the mitigation letters.  I take into account your young age, still only 15 and that you have a clear record.  I take into account that you were also recruited by D1 and therefore to that extent you are also less culpable than D1.  Nevertheless this remains a serious offence you having also for reward willingly taken part in an armed attack in which you used a hammer.

37.The reports reveal that you also began to deteriorate in secondary school.  You lost interest in studying having failed all subjects in Form One.  You were frequently absent from school preferring to go to amusement game centres and cyber cafes where you associated with dubious peers affiliated to the Sun Yee On Triad Society.  Although you were sent by your parents to the Mainland to study you were unable to meet the academic standard and returned to Hong Kong without completing Form Two.

38.The assessment officer says you show no remorse for what you did and defied assistance from the rehabilitation staff.  In these circumstances in order to help you develop more insight into your problems and cultivate positive moral values as well as strengthen your law abiding concept, a period of disciplinary training coupled with statutory supervision is said to be beneficial to you.  You too have expressed the wish this morning to be sentenced to imprisonment.

39.You told the probation officer that you have learnt a lesson and become aware of the gravity of the offence.  The probation officer is of the view that disciplinary training might be conducive to rebuilding your character and positive lifestyle as well as strengthening your self will to sever undesirable association.

40.Taking into account your clear record and that you are still only 15 and having carefully considered your character and conduct and the circumstances of the offence I am satisfied that in your case it would be in your interest and that of the community that you undergo a period of training in a training centre. You are convicted and sentenced to detention in a training centre.