HKSAR v. Liu Man Chun
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DCCC 204/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 204 OF 2014 -----------------------------------
---------------------------- 1.The defendant pleaded guilty to one charge of assault occasioning bodily harm and two charges of wounding with intent. The fourth charge of claiming to be a member of a triad society was ordered to be kept on file, not to be proceeded with without the leave of court. Summary of facts 2.Mr. Choi, Ms. Yeung and Mr. Lin (victims 1, 2 and 3) and other people were at a pub at Shui Chee Koon Street in Yuen Long at about 1am on 14 August 2013. They left the pub at around 3:35am together to find something to eat. 3.When they got to a newspaper booth outside no.4 Kuk Ting Street, the defendant and another male (hereinafter as AP) suddenly approached the victims’ party from behind and attacked them. 4.Victim 1 was the first person to be attacked by the defendant and the AP as he was the one walking at the back of their group. He literally did not know what hit him as he passed out when someone hit him on his neck. Victim 2 and 3 however saw that it was the defendant and the AP who rushed up to victim 1 and punched him and knocked him down. The defendant and the AP then went to attack victims 2 and 3. Most of that part of the attack was caught on closed circuit television cameras. 5.According to the summary of facts, the defendant threw several punches at Victim 2 who attempted to fend off the attack with her hands. The defendant grabbed Victim 2 by her neck and then used his left hand to punch her face heavily, causing her to lose her balance and to take a few steps back. 6.Victim 3 intervened at this stage and grabbed the defendant’s arms and put up a struggle. As Victim 3 was struggling with the defendant, AP entered the scene holding a glass bottle in his right hand. He dashed towards Victim 2 and smashed the glass bottle on to her head. 7.Victim 2 fell to the ground. AP then used the broken glass bottle to slice at Victim 2’s nose. AP then somehow fell on to the ground as well, but he got up quickly and kicked Victim 2 twice in her head while she was still struggling on the ground. AP then walked to a signpost next to Victim 2, steadied himself against it and stepped on Victim 2’s head. 8.All along, the defendant was struggling with Victim 3. 9.Having knocked Victim 2 down, AP turned and proceeded to assist the defendant to attack Victim 3. 10.The defendant managed to free himself and he then punched Victim 3 on his nose causing him to bend over. Victim 3 was then attacked on his head and back for about 15 seconds and he felt dizzy. When the dizziness subsided, he saw the defendant attempting to flee while AP was nowhere to be seen. 11.While Victim 3 was being attacked, Victim 2 slowly got up from the ground with her face covered in blood. The defendant walked towards Victim 2 and punched her face once, knocking Victim 2 down again. 12.The case was reported to the Police. 13.Following Police investigation, the defendant was located and arrested at home. Under caution, the defendant said that he was drunk and attacked the victims out of impulsiveness. 14.In the later video recorded interview, the defendant admitted to punching the 3 victims. He said he did so because one of them bumped into him outside the bar and so he pursued them. The defendant had consumed alcohol at that time. He said he did not himself use any weapon in the attack. The attack was committed together with AP, whose name was Li Ka Kit. The defendant then provided the mobile phone number of Li and gave a description of his appearance to the Police. 15.Victim 1 was later diagnosed to have suffered a 1 cm laceration over the right jaw area, bruises and tenderness over right corner of mouth, lacerations over upper and lower lip, tenderness over occiput, upper neck and left shoulder region, with a small abrasion wound over the left elbow. He was treated and discharged on the same day. 16.Victim 2 suffered from a 4 cm laceration wound over the nasal region which required 22 stitches, a 1 cm laceration over the head region and small abrasion wounds over the upper and lower lip. The wounds have healed but there is an obvious scar at the time. 17.Victim 3 suffered a 2 cm laceration wound over the right head region. The wound was deep and 3 stitches as well as a brain scan was required. There was tenderness over both cheek regions, a small abrasion wound over the upper lip region, subconjunctival haemorrhage over the left eye and small abrasion wound on the left little finger. Victim 3 was treated and discharged on the same day. He was later referred to Tuen Mun Eye Centre for treatment of the injury to his left eye. Previous convictions 18.The defendant is of previously clear record. Mitigation 19.The defendant is 19 years old. After his plea of guilty, the defendant indicated that he would like to assist the Police in the prosecution of his accomplice and the matter was adjourned for statements to be taken. Despite the defendant’s apparent willingness to assist, the Department of Justice considered the contents in the defendant’s statements insufficient to support a prosecution against Li Ka Kit. Counsel for the defendant then invited the court to call for reports before sentencing the defendant, although it is not disputed that because charges 2 and 3 are excepted offences under Schedule 3 of the Criminal Procedure Ordinance, Cap.221 and as such imprisonment is not required to be the last sentencing option despite the defendant being under 21 years old at the time of sentencing. 20.Nevertheless, given the age and the fact that the defendant is of previously clear record, Rehabilitation Centre, Detention Centre and Training Centre reports were ordered to be prepared on the defendant. The defendant was however told in no uncertain terms that it is highly likely that he will be dealt with by way of an immediate custodial sentence even if the reports come back favourable. 21.The report provides information of the defendant’s full background. In gist, the defendant is well supported by his parents but he was influenced by his peers and failed to conduct himself properly. It is the assessment officer’s recommendation that the defendant be detained in the Detention Centre and that there is a place available for him. Sentence 22.The maximum sentence for assault occasioning actual bodily harm under s.39 (charge 1) of the Offences Against the Person Ordinance, Cap.212 is that of 3 years’ imprisonment. The maximum sentence for wounding under s.17 (charge 2 and 3) of the same ordinance is that of life imprisonment. 23.As mentioned above, wounding under s.17 of the OAP is an excepted offence. The attack on the victims was as a result of a bump against the defendant by one of the victims. Even if the defendant was under the influence of alcohol at the time, what he and his accomplice did was despicable. They first started to attack Victim 1 from behind his back without any warning. 24.The defendant is now 19 years old. It is not a particularly young age and given the fact that the defendant was educated up to Form 6 level, he must have known what he did was seriously wrong and yet he went on to do it. 25.The defendant was ferocious in his attack. Although the defendant himself did not use the glass bottle to carry out the attack, his viciousness is seen in his last attack on Victim 2 when she had just got back on her feet with face covered in blood and the defendant went up and punched her face once which immediately knocked her down again. 26.The injuries suffered by the victims were serious injuries. Fortunately, according to the prosecution the victims have all fully recovered. 27.Even from the assessment officer’s report, it is his view that the defendant showed only ‘a little sense of remorse’. This lack of remorse is also evident in the alleged assistance he was supposed to be providing the Police in relation to the prosecution of the accomplice in the attack. I was told by the prosecution that in his non-prejudicial statement, the defendant first said that he could not remember who was standing next to him during the attack on the victims, but then on another occasion said that the other person in the closed circuit television footage was in fact Li Ka Kit. I do not have sight of the full statements but I accept what Mr. Hui for the prosecution, the advising counsel on the matter, told me, which is that the information provided by the defendant is insufficient to allow a prosecution against Li Ka Kit to proceed. The prosecution has serious doubt as to the defendant’s credibility. 28.Mr. Li for the defendant attempted to explain the defendant’s inability to remember who was standing next to him at the time of the attack by suggesting that the defendant was quite drunk at the time. It was then pointed out to Mr. Li that the defendant in his video recorded interview told the Police that the attack was committed together with another male Li Ka Kit. 29.I find that the defendant failed to give real assistance to the Police and as such is not entitled to any discount in his sentence on this particular ground. 30.I find that there is also the need for an element of deterrence in the sentence. Young people must learn to control their emotions and know that if they do not, they will suffer the full consequences and if what they did as a result of such loss of control was against the law, then they will go to jail despite being relatively young. 31.Based on the circumstances of the case, the defendant being the instigator of the attack since it was when he was bumped that triggered off his desire to attack the victims, the ferocity of the attack, the seriousness of the injury suffered by Victim 2 in particular and the use of the beer bottle in the attack by the defendant’s accomplice, I find that an immediate custodial sentence is the only appropriate sentence. 32.I do however take into consideration the defendant’s previously clear record and the fact that he did give to the Police the name and phone number of the accomplice when he was being interviewed and I find them as mitigating factors. Charge 1 33.In relation to charge 1, I adopt a starting point of 9 months’ imprisonment, discounted to that of 6 months’ imprisonment upon the defendant’s guilty plea and further reduced by 1 month based on the said mitigating factors. The sentence for charge 1 is therefore 5 months’ imprisonment. Charge 2 and 3 34.In relation to each of charge 2 and 3, I adopt a starting point of 2 years and 9 months’ imprisonment, having already taken into account the said mitigating factors mentioned above. The sentence is then discounting it by one-third upon the defendant’s guilty plea and the defendant is sentenced to 22 months’ imprisonment on each charge. Totality 35.The attacks were all committed at around the same time and arose from the same incident. Yet the defendant had assaulted 3 different people. Having stood back to consider the circumstances, I order the sentences in charge 2 and 3 be served wholly concurrently, but 2 months of the sentence in charge 1 be served consecutively to the sentence in charges 2 and 3, making a total final sentence of 2 years’ imprisonment.
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