HKSAR v. Sundip Singh Sunny and Others

DCCC 386/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 386 OF 2014

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Reasons for Sentence

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1.There are three defendants before me: D1, Sundip Singh Sunny; D2, Chen Kin-man; and D3, Cheung Chak-sek. Each of the defendants is a teenager with a clear record.

2.This case originated from a police undercover operation codenamed “High Scorer”.  PW1 (DPC 10029) took part in the operation and acted as a undercover police officer.  The operation started on 17 June 2012 and turned overt on 29 March 2013.  During a street identification, PW1 identified the three defendants and they were arrested and subsequently charged.

3.The three defendants were convicted after trial of a joint charge of “Conspiracy to Wound with Intent” (Charge 5). 

4.D1 was also convicted after trial of one charge of “Claiming to be a Member of a Triad Society” (Charge 1), one of “Inviting a Person to become a Member of a Triad Society” (Charge 2), and two of “Acting as a Member of a Triad Society” (Charge 3 and 4).

5.Charge 1 concerns a meeting which took place in the early hours on 4 August 2012.  PW1 met the 1st defendant for the first time at the meeting and the two chatted.  D1 asked for PW1’s name and the two exchanged telephone numbers.  D1 told PW1 to drop his name and call him if anything or any trouble occurred in Kwai Fong.  D1 also told PW1 he was of Tsuen Wan “Wo Shing Wo” and “Ah Fong” was his follower.  The aforesaid utterance formed the subject matter of Charge 1.

6.Charge 2 concerned a meeting which took place in the morning on 6 August 2012.  On that occasion, D1 asked PW1 if he was following any “big brother”.  PW1 replied in the negative. D1 then said, “If you have not, why not follow me?  I am of ‘Shing Wo’.  My ‘big brother’ is ‘Big Nose’.  If anything happens, quote my name.  It’s okay.” The above invitation forms the subject matter of Charge 2.

7.Charge 3 concerned a gathering in the evening on 10 August 2012.  PW1 was then having a gathering with some of his acquaintances outside Kwai Hei House, Kwai Fong Estate.  D1 appeared and said to those present, “I have arranged to meet and negotiate with a group of ‘Shui Fong Chai’.  Follow me to Kwai Kwong.” 

8.The party then proceeded to and arrived at the 3rd floor of Kwai Chung Plaza.  A settlement talk took place between D1 and a male, Leung Chi-kin of “Shui Fong”.  During the settlement talk, Leung said to D1, “Your subordinates are very cheeky.  I will definitely bother the [four-letter word] out of him. Don’t see us ‘Shui Fong’ as nothing.”  D1 responded by saying, “Go ahead and bother.”

9.Charge 4 concerned an incident which took place in the evening on 18 September 2012.  PW1 met D1 by chance at Shing Fong Street Playground in Kwai Fong.  D1 asked PW1 whether he had prepared the red packet that D1 had asked for previously.  PW1 told D1 that he had prepared the same and he passed a red packet of $3.60 to D1.  D1 also told PW1 words to the effect that, from then onwards, they were fellowmen; for anything that might occur, PW1 would be part of it.  D1 also told PW1 that he would soon go over to ‘Lo Sun’ and he would ask PW1 to do the same when that happened.

10.Charge 5 concerned an agreement to attack a taxi driver outside the Eastern Law Courts building.  D1, D2, D3 and a Mo Chong-man agreed to attack a taxi driver outside the Eastern Court building on 21 November 2012.  Mo Chong-man instructed the group to attack the taxi driver until his eyes burst.  Mo also instructed PW1 to buy a glass bottle of something and burst it on the taxi driver.  Mo, D1, D2, D3 and PW1 went to the vicinity of the Eastern Law Court in the morning on 21 November 2012.  The attack was eventually aborted.

11.As the three defendants are all of young age, I called for pre-sentencing reports.  I called for a Training Centre report and a Detention Centre report for D1, D2 and D3.

12.The pre-sentencing report of D1 reveals that he is a drug dependent.  Thus, the medical officer opines that D1 is not suitable for detention in a Detention Centre or a Training Centre. 

13.The report also reveals that D1 has a second case in the District Court (ie DCCC 385/2014). The court asked for a DATC report and D1 would be sentenced on 13 October 2014.

14.Mr Khosa, in mitigation, urged me to bear in mind the age of D1 in the sentencing process. Although D1 is not of extreme youth, youth is still a relevant factor in sentencing. 

15.D1 is the only son of the family and his parents had undergone a turbulent marriage, which ended up in a divorce.  D1’s father later remarried a local divorcee.  In the years leading up to the divorce in 2009, there was very loose supervision on D1 and the education history of D1 reveals that he did badly at school.  He had to be sent back to India and lived with his grandparents for a period of time. 

16.D1 was arrested in late March 2013.  By then, D1’s family had a plan to send D1 back to India.  In fact, arrangements had been made for D1 to leave on 2 April 2013, but he was arrested on 29 March.

17.Mr Khosa told me D1 had tried to sever his links with his “big brother”, “Tai Pei” (ie the “Big Nose” referred to in the evidence).  The family members of D1 are doing the best they can to help D1.  As said, they had a plan to send D1 back to live in India to resolve the matter.  But for the court proceedings, D1 would have been in India. 

18.Mr Khosa submitted that it is no secret that triad societies do recruit young mind and D1 is of no exception.  He used to loiter in Kwai Fong district and he came to know some undesirable people who provided D1 with drugs for free.  D1 was only 11 or 12 at the time when he first met these people.  It was easy to brainwash a kid like D1, with his age.  He was eventually lured to follow “Tai Pei” (ie “Big Nose”).

19.Mr Khosa asked me to bear in mind D1’s need for rehabilitation, re-education and reformation.  Mr Khosa submitted that, unless the offences in question are so grave in nature and punishment is the only option, I should consider D1’s interest to receive education and reformation by other means.

20.The five offences that D1 now stands convicted of all arose from an undercover police operation. The defendants were youngsters who loitered around Kwai Fong estate, but, in truth, they were youngsters being used by their older and more senior triad members to carry out their jobs. 

21.Though D1 had joined a triad society, he was not somebody who could work independently on his own. True that he took part in a negotiation talk, but the evidence showed that he played a rather passive role, Mr Khosa submitted.

22.For the 5th charge (ie the “Conspiracy to Wound with Intent”), the plan to attack was not carried out and it remained only a plan at the end.

23.Mr Khosa urged me to consider Drug Addiction Treatment Centre order as an option and he asked me to give D1 a chance.

24.Mr Ng for D2 submitted a mitigation letter written by D2, in which he expressed his remorse.  He also submitted a letter written by the ex-employer of D2 and one written by a social worker.  He also handed up some certificates and awards received by D2 for his voluntary work provided in the past.

25.Mr Ng told me D2 was only 16 years old when he committed the offence.  He had a hitherto clear record and he was not the mastermind of the conspiracy to attack.

26.Mr Ng urged me to adopt the recommendation of the report and sentence D2 to a Detention Centre.

27.Mr Leung for D3 submits that the pre-sentencing report is a positive one.  D3 was only 17 years old at the time and he had a clear record.  Though he agreed to attack a taxi driver, but, fortunately, the attack was not carried out and nobody was injured.

28.Mr Leung also put in a mitigation letter written by D3 and one written by the family members of D3 (ie the parents of D3 and his three elder sisters).

29.In sentencing the defendants, I have borne in mind the facts of this case, all the matters urged on their behalf by their counsel.  I am aware that each of the defendants before me is a young man with a hitherto clear record.

30.In the case of D1, a period of detention in a Detention Centre or a Training Centre was once my option, but, regrettably, the pre-sentencing report reveals that he is a drug addict and thus not suitable for detention in a Training Centre or a Detention Centre.

31.Mr Khosa urged me to consider a Drug Addiction Treatment Centre order. 

32.But, in my judgment, a DATC order cannot sufficiently reflect the seriousness of the offences that D1 had committed.  A period of imprisonment is the only available option.

33.For the 1st charge (claiming to be a member of a triad society), a short term of imprisonment is called for.  This case is not the worst of its kind, as no fear was intended to be instilled on the recipient of the utterance.  A starting point of 6 months’ imprisonment is appropriate. 

34.I would allow D1 1 month’s reduction because of his young age and hitherto clear record. 

35.On Charge 1, I sentence D1 to 5 months’ imprisonment.

36.For Charge 2 (“Inviting a Person to become a Member of a Triad Society”), on the facts before me, a starting point of 12 months’ imprisonment is appropriate.  D1 was trying to recruit a young member to become a member of “Wo Shing Wo” Triad Society. 

37.I would allow D1 1 month’s reduction for his clear record and young age.

38.For the reasons given, on Charge 2, I sentence D1 to 11 months’ imprisonment.

39.For Charge 3, D1 was asking the undercover agent and some youngsters to attend a triad settlement talk with him.  A starting point of 12 months’ imprisonment is appropriate.

40.Likewise, I shall allow D1 1 month’s reduction for his clear record and young age.

41.On Charge 3, I sentence D1 to 11 months’ imprisonment.

42.For Charge 4, the receipt of the red packet and the conversation that D1 had with PW1 on the day in question called for a starting point of 12 months’ imprisonment.

43.I shall allow D1 1 month’s reduction for his clear record and young age.

44.That would bring his sentence down to 11 months’ imprisonment.

45.For the reasons, on Charge 4, I sentence D1 to 11 months’ imprisonment.

46.Charge 5 concerned an agreement to attack a taxi driver with a glass bottle.  The participants were instructed to attack the taxi driver until his eyes burst. 

47.Of the three defendants, D1 was more culpable than the other two, as he helped to organise the attack. 

48.As what happened agreed remained a plan in the end, in my judgment, a starting point of 2 years’ imprisonment is appropriate for D1.

49.For his young age and clear record, I would allow D1 a reduction of 2 months.

50.For the reasons, I sentence D1 to 22 months’ imprisonment for Charge 5.

51.As for D2 and D3, they each played a relatively minor role compared to D1. 

52.The intake officer of the Correctional Services Department says at the penultimate paragraph of the DC/TC report of D2:

“In order to help Defendant gain insight into his problems and strengthen his law-abiding concept, a period of disciplinary training, coupled with statutory supervision, would be beneficial to him.”

53.The intake officer of D3’s DC/TC report says:

“After leaving school, Defendant mingled closely with his triad-affiliated peers and led a goalless life pattern. Defendant’s acquaintance with undesirable peers eventually landed him in the current trouble. In order to help him develop more insight into his problems, a period of disciplinary training, coupled with statutory supervision, would be beneficial to him.”

54.It seems to me both D2 and D3 have immersed in triad subculture for some time.  A period of disciplinary training would help to cleanse the adverse effect of triad subculture that has had on D2 and D3.

55.Eventually, I am prepared to give D2 and D3 a chance by sending them to a Detention Centre.

56.On Charge 5, I sentence D2 and D3 to be detained in a Detention Centre.

57.In the case of D1, I bear in mind the totality principle. 

58.Bearing in mind the young age of D1 and his hitherto clear record, a total sentence of 24 months, in my judgment, should sufficiently reflect the overall criminalities of all five offences.

59.In order to achieve this desired totality, I order that the sentences for Charge 1 to Charge 4 should run concurrently with each other, but 2 months of the sentences for Charge 1 to Charge 4 shall run consecutively to the sentence for Charge 5, making a total of 24 months’ imprisonment.