HKSAR v. Chan Kwok Chuen

DCCC 112/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 112 OF 2015

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REASONS FOR SENTENCE

1.Chan Kwok Chuen you have pleaded guilty to one charge of wounding with intent to do grievous bodily harm, contrary to section 17 of the Offences against the Person Ordinance, Chapter 212 (charge 1); and two charges of assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance (charges 2 & 3).

2.In summary in the evening of the 3 November 2014 Mr Man, Mr Lung and Mr Tsang, three taxi drivers, were having dinner together at the cooked food centre on the first floor of the Ngau Tau Kok market.  At about midnight you went over to their table and chatted with them.

3.Soon after you had a dispute with Mr Man and Mr Tsang.  Mr Man and Mr Tsang led you to a nearby footbridge where they attempted to calm you down.  Mr Man and Mr Tsang then returned to the cooked food centre to pay the bill.  

4.After paying the bill Mr Man, Mr Lung and Mr Tsang left.  When they were on the escalator leading from the cooked food centre you rushed towards them holding a chair.  Together with a group of about ten young males you attacked Mr Man, Mr Lung and Mr Tsang.

5.In the course of the attack, which lasted about 1 minute, you struck Mr Man on his head with the chair seven to eight times causing him to fall down on the escalator.  You continued to hit Mr Man with the chair and at the same time the young men punched and kicked Mr Man.  When Mr Lung tried to stop you hitting Mr Man you hit Mr Lung in his face with your elbow.  You also repeatedly struck Mr Tsang on the back of his head with the chair while the young men also punched and kicked Mr Tsang. 

6.Full details of the injuries sustained by Mr Man, Mr Lung and Mr Tsang are particularised in the facts admitted by you and shown in the photographs submitted to court. I am informed that most fortunately Mr Man, Mr Lung and Mr Tsang have each made a full recovery from their injuries. 

Mitigation

7.In passing sentence I take into account everything said on your behalf by Mr Boyton together with the letters of mitigation from your wife and from workers at the market who say you have been helpful in the market and have never stirred up trouble before.  Although you have two previous convictions for violence I note these were over 20 years ago since which time you have worked hard as a taxi driver.

8.I am told you have known Mr Man for over 10 years and both Mr Lung and Mr Tsang for over 8 years.  On that night you had also been having dinner at a different table of the cooked food centre during which time you had drunk too much alcohol.  Fuelled by alcohol you cannot now remember what the dispute was about, save that afterwards you remember going down the escalator when you met the group of young men, who were your friends and fellow taxi drivers.  Having been insulted earlier by Mr Man and Mr Lung you asked the group to help you attack them.  

9.I accept the submission of Mr Boyton this was not a premeditated attack in that you rang up for reinforcement and went to collect a weapon.  Mr Boyton explains that the cooked food centre is a place where taxi drivers frequent and on leaving you just happened to meet the other taxi drivers and picked up a chair which was handily placed nearby.    

10.Both the letters from your wife and the workers at the market refer to you acting under the influence of alcohol.  Whilst explaining your behaviour this is no excuse for gratuitous violence on defenceless persons.  Clearly you were not so drunk having in a very short time been able to persuade about ten young men to help you attack other taxi drivers.

11.Violence of this kind must be met with deterrent sentences.  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.  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.”

12.In HKSAR v Chan Chun Tat CACC 317/2012 the court listed a number of relevant factors to be considered in determining the gravity of the offence and the culpability of the offender, including the extent to which the assault was premeditated; the reasons or motivation underlying the assault upon the victim; the mental or emotional state of the assailant at the time of the assault; whether alcohol or drugs contributed to the actions of the assailant; whether the assault was committed by the assailant alone or as part of a group; the type of weapons employed; the level of force or aggression and the persistence with which the assault was pressed home; the injuries caused to the victim and the effect of the assault upon the victim and those close to him or her.

13.Whilst it has been said that little purpose will be served by comparing sentences imposed on the basis of different facts a review of some cases gives the court an indication of where the sentence will fall within that range of 3-12 years. I will refer to two cases.

14.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.

15.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.”

16.Whilst you may also have felt aggrieved about being insulted you cannot take the law into your own hands.  Although no knife was used you did use a chair as a ‘weapon’ to hit both Mr Man and Mr Tsang. What type of chair was used is however unknown.  Mr Boyton informs the court that there were both wooden chairs and plastic chairs at that location however as the CCTV footage (not produced to court) did not show the attack with the chair Mr Arthur was content to describe in the summary of facts that a chair was used without specifying what type of chair.  Whatever type of chair was used the attack remains very serious involving 10 young men to help you attack the victims, one of whom was very seriously injured. 

17.In Secretary for Justice v Ko Kwok Shun CAAR 4/2012(English digest in the Criminal Appeals Bulletin, October 2012), a group of about 12 males attacked the victim to teach him a lesson for a quarrel that had occurred earlier that night.  In addition to punching and kicking him traffic cones were also thrown at the victim.  Some assailants punched the victim on the back of his head causing him to fall to the ground after which they continued to kick the victim’s head.  The attack lasted 5-8 minutes. 

18.The victim sustained serious injuries for which he was hospitalised for two days, including lacerations above the right eye requiring suturing; multiple bruises to the right eye; the back; both elbows and knees; a haematoma on the left ear and bilateral traumatic subconjunctival haemorrhage in the ears.   

19.The Court of Appeal taking into account that the respondent ganged up with more than 10 persons to attack the victim in retaliation for what had happened earlier; that the respondent continued to kick the victim’s head after he was knocked to the ground and became defenceless; the attack lasted 5-8 minutes and the victim sustained serious injuries, held that a starting point of 3 years was appropriate. 

20.In my view the present case is more serious than in Ko Kwok Shun in that three persons were injured as a result of the attack and that you used a chair as a ‘weapon’ to hit the head of Mr Man and Mr Tsang. Mr Man’s injuries are also more serious, in particular the fractures of the floor of the orbit and the orbital wall and a deep laceration on the forehead, which injury is graphically shown in the photographs. 

21.Taking into account that you asked a group of about ten young men to help you attack the victims; you continued to hit Mr Man on his head after he was knocked to the ground; and Mr Man suffered very serious injuries for which he was hospitalised for three days, I am satisfied that a starting point of 3 years and 6 months imprisonment is appropriate for wounding Mr Man. 

22.Although Mr Lung was injured by a single blow to the eye the photographs of the injury show that this must have been with considerable force.  I am satisfied that a starting point of 9 months imprisonment is appropriate for assaulting Mr Lung.

23.Mr Tsang was repeatedly hit by you with the chair on the back of his head.  Most fortunately Mr Tsang sustained no visible injuries to his head.  Whilst his injuries may be regarded therefore as less serious the assault remains a serious one Mr Tsang having also been punched and kicked by the group of ten.  I am satisfied a starting point of 9 months imprisonment is also appropriate for assaulting Mr Tsang. 

24.Giving you full credit for your pleas of guilty reduces the sentence for wounding to 2 years and 4 months; and for the assault charges to 6 months imprisonment on each charge.  

Compensation

25.You have offered to pay compensation of $2,000 to Mr Man, Mr Lung and Mr Tsang, which sum I am told they are each willing to accept.  I have reservations in making such an order in particular with regard to Mr Man who suffered the most serious injuries.

26.Before considering making such an order I required to be satisfied that Mr Man, Mr Lung and Mr Tsang be made aware that acceptance of the compensation may be a bar to them issuing civil proceedings.  Mr Arthur informs the court that on being told this Mr Man, Mr Lung and Mr Tsang each expressed the view that they had no wish to pursue any civil action.

27.Subject to meeting the eligibility requirement of the scheme Mr Man, Mr Lung and Mr Tsang may make a claim for compensation under the Criminal and Law Enforcement Injuries Compensation Scheme which is administered by the Social Welfare Department.  If not already informed by the police of this I would ask that this be drawn to their attention.  Any compensation awarded will be reduced by the amount of compensation ordered by the court in respect of the injuries sustained.     

28.After careful consideration notwithstanding the sums offered are very small I make an order you pay $2,000 compensation to Mr Lung and Mr Tsang.  In my view the amount offered in respect of Mr Man can properly be described not only as very small but also as derisory.  Ordinarily in these circumstances I would not make an order for compensation.  However as Mr Man also accepts this sum in order that he can receive at least some compensation now for his loss of income whilst in hospital I make an order that you to pay Mr Man $2,000 compensation. You have consented to payment being made from your bail money and the balance from the monies paid into court this afternoon. 

29.By reason of the payment of compensation I reduce the sentence on each of the two assault charges by half a month.  I am satisfied that no reduction in sentence should be given in respect of payment of $2,000 to Mr Man.  Whilst payment of compensation is a sign of remorse as I have described this is a derisory sum. Further I am satisfied for a total payment of $6,000 compensation a month reduction in sentence is appropriate.

Totality

30.Although the charges arise out of the same incident sentence must reflect that three persons were injured.  I am satisfied a total sentence of 4 years imprisonment is appropriate which after a plea of guilty results in a sentence of 2 years and 8 months imprisonment which  I reduce by 1 month by reason of the payment of compensation. 

Sentence

31.You are convicted and sentenced as follows:

Charge 1 – 2 years and 4 monthsimprisonment;

Charge 2 – 5½ months imprisonment with 1½ months consecutive to charge 1and 4 months concurrent; and

Charge 3 – 5½ months imprisonment with 1½ months consecutive to charges 1 & 2 and 4 months concurrent;

You will serve a total sentence of 2 years and 7 months imprisonment which I am satisfied properly reflects your criminal culpability on the three charges.