HKSAR v. Hui Ming Li and Others

DCCC 320/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 320 OF 2013

-----------------------------------

-----------------------------------

----------------------------

Reasons for Sentence

----------------------------

1.There are 2 charges in this case. The 3 defendants are aged 19, 25 and 16 respectively.

2.Charge 1 is against D1 and D3 for Assault occasioning actual bodily harm, contrary to common law and punishable under s.39 of the Offences Against the Person Ordinance, Cap.212.

3.Charge 2 is against D1 and D2 for Conspiracy to pervert the course of public justice, contrary to common law and ss.159A and 159C of the Crimes Ordinance, Cap.200 and punishable under s.101I(1)[1] of the Criminal Procedure Ordinance, Cap.221.

Facts

Charge 1

4.PW1 is D1’s former girlfriend. They split up in November 2012. PW1 and D2 started to date 2 months later.

5.On 20^th December 2012, at 10:42pm, PW2 Police officer arrived at Wanchai Park in response to a 999 call to find PW1 and D2 together. There were superficial injuries on the face and hand of D2, and so he was taken to hospital. Medical examination revealed tenderness and redness on D2’s scalp, face and back, with fresh abrasions on his left hand, elbow and face.

6.About 4 hours later, based on information supplied by PW1 and D2, the Police arrested D1 in Wanchai for assaulting D2. D1 was later released on Police bail after initial enquiry.

Charge 2

7.After his release, D1 sent a number of short messages over the phone to PW1, asking her about the intention of D2. D1 also asked for the phone number of D2. Feeling annoyed, PW1 gave D1’s phone number to D2. Subsequently, there was a discussion between D1 and D2 about the compensation to be offered by D1 in exchange for D2 not testifying against D1.

Arrest and cautioned statement of D1

8.D1 was arrested for perverting the course of public justice on 6^th January. Under caution, D1 admitted that he did have a telephone conversation with D2 asking him not to testify against D1. D1 said he promised to pay D2 $10,000.

9.In later video recorded interviews, D1 further admitted that he had summonsed D3 to assault D2 inside Wanchai Park on 20^th December. D3 came with an unknown man that day. D1 picked up a wooden pole and passed it to D3 to hit D2. D1 himself assaulted D2 with his bare hands.

10.After D1 was released on Police bail for assaulting D2, he received an SMS message from D2 asking D1 why he was looking for him. D1 replied with an SMS message with words to the effect that D2 should not testify against D1 for the assault on D2 and that D1 was willing to pay to settle the matter. They negotiated and eventually agreed on $10,000. D1 was to pay $6,000 first and the balance of $4,000 would be paid later.

Arrest and cautioned statements of D2

11.D2 himself was arrested on 7^th January 2013 for conspiracy to rob. In a subsequent video recorded interview, D2 said he was assaulted by 3 males inside Wanchai Park on 21st December 2012. Through PW1, he got the phone number of D1. D2 then used a pre-paid China Mobile SIM card to contact D1.

12.D2 sent an SMS message to D1 telling him that he could settle the case of assault by payment of money. D2 demanded $10,000 from D1 to drop the case. D1 could not raise the money and so D2 suggested to D1 that he could pay $6,000 first and the balance later. D2 promised D1 that he will not identify him at the subsequent identification parade to be held. D2 also gave his bank account number to D1 for him to deposit the money into his account. D1 however failed to make any payment as promised.

Arrest and cautioned statements of D3

13.D3 was arrested on 7^th January 2013 in connection with the assault of D2. D3 admitted in a video recorded interview that he, D1 and another person assaulted D2 together inside Wanchai Park. It was D1 who called and asked D3 to join in the assault. D3 pushed D2 to the ground and hit him for about 3 times while the other man struck D2 with a wooden pole.

Previous convictions

14.D1 has 2 previous convictions dating back to 2008, they were for Attempt Burglary and Theft where he was sentenced to 15 months’ probation. Both of those convictions are regarded as spent under the Rehabilitation of Offender Ordinance, Cap.297. D1 was convicted of another Theft case in June 2013 and was sentenced to detention in the Training Centre. That offence however took place in January 2013, which was after his commission of the present offences.

15.D2 is of previously clear record.

16.D3 has 3 previous convictions. He was convicted of Theft in 2011, Assault Occasioning Actual Bodily Harm in 2012 and was involved in the same theft case with D1 mentioned above. D3 was also sentenced to detention in the Training Centre for that. Again, that theft was committed before the present charge 1 that D3 has pleaded guilty to.

Sentence

Reports

17.Neither charge 1 nor charge 2 are excepted offences. Because of D1 and D3’s age, s.109A of the Criminal Procedure Ordinance applies, meaning that imprisonment must be the last resort when sentencing D1 and D3.

18.D1 and D3 were sentenced just 1 day before they pleaded guilty in the present case in another District Court case. They were both sentenced to detention at the Training Center. Updated reports were ordered to be prepared on D1 and D3. Since D2 is of clear record and given the circumstances of how he came to commit the perverting of public justice offence, a background report was ordered to be prepared on D2. The file for the theft case where D1 and D3 were sentenced was also called up for reference.

19.D1 and D3’s Training Centre report as well as D2’s background report all painted favorable pictures of the defendants.

D1 and D3

20.D1 committed the previous theft offence with D3 in order to get the money to pay off D2 in relation to the present case. The assault by D1 and D3 on D2 originated from D1 not able to handle his emotional situation. D2 committed the perverting charge but he did not initiate the conspiracy. D1’s decision to pay money to D2 must have been because he feared the consequences of another conviction. All in all, this is a case of a few young people acting naively.

21.Having considered the circumstances of the commission of both charge 1 and 2, and the remorse D1 and D3 had shown and the family support that they have, and having been assisted by the detailed reports prepared by Officers Li and Ma of the Pik Uk Correctional Institution, I find that a proper sentence is a period of detention in the Training Centre for both D1 and D3. Now that they and their family realized the extent of the problems these two young man faces, perhaps they can embark on their journey to rehabilitation.

22.D1 is sentenced to detention in the Training Centre for charges 1 and 2 to be served concurrently as well as concurrent to the present Training Centre detention order he is presently under. D3 is sentenced to detention in the Training Centre for charge 1, concurrent to the present Training Centre order he is under. D1 is 19 years and 4 months old, and D3 is 16 years and 7 months old at the time of sentence.

D2

23.The background report shows that the commission of the present offence suggest a first and single fall from grace. Although he did not do too well in his school work, he has proved to be able to maintain stable employment and has been contributing regularly to his family. D2’s starting role in the whole debacle was the victim of the assault. He was then approached by D1 who offered to pay him money. D2 did not realize the possible serious consequences and succumbed to greed.

24.I was referred to the case of AG v Yeung Sau Shing, CAAR 21/1980 by Mr. Omar. As Mr. Omar rightly pointed out the facts in that case are more serious than ours and I find that there are circumstances in our present case that warrant a more lenient sentence.

25.D2 has been in custody for about 5 months since his arrest in January. I have taken that into consideration when arriving at my following sentencing decision.

26.Conspiracy to pervert the course of justice is a serious offence and should attract a term of imprisonment even in the present case. I will therefore adopt a starting point of 12 months’ imprisonment, discounted to 8 months in recognition of D2’s plea of guilty.

27.I find however that there are exceptional circumstances in the present case for me to order that this sentence be suspended. As pointed out above, D2 was a victim of the assault, he did not initiate the conspiracy, he is of clear record and the background report shows that he is a responsible person both towards his job and his family, and the indications are that there is a very low risk of re-offending.  I find that he should be given the opportunity to continue with his employment and to try to continue to contribute to society.

28.For those reasons, I order that the 8 months’ imprisonment sentence be suspended for a period of 3 years. If D2 does not commit and be convicted of any criminal offence in this period, he will not have to serve this term of imprisonment. If he is convicted of a criminal offence during this period of suspension, in addition to being dealt with for the new conviction, he may also be ordered to serve part or whole of this 8 months’ sentence, to be decided by the then sentencing court.

29.D2 is sentenced to 8 months’ imprisonment suspended for 3 years for charge 2.