DCCC109/2012 HKSAR v. LING CHI YIP AND ANOTHER - LawHero
DCCC109/2012
區域法院（刑事）Deputy District Judge Johnny Chan24/5/2012
DCCC109/2012
A A
DCCC109/2012
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO. 109 OF 2012 C
D ---------------------- D
E HKSAR E
v.
F F
Ling Chi-yip (D1)
G Wong Chi-wa (D2) G
H ---------------------- H
I Before: Deputy District Judge Johnny Chan I
Date: 25 May 2012 at 10.09 am
Present: Ms Catherine Ko, SPP of the Department of Justice, for HKSAR
J J
Mr Jeffrey George Fenton, instructed by S H Chan & Co, for the 1st
Defendant
K Mr John Hemmings, instructed by T C Lau & Co, for the 2nd K
Defendant
L Offence: (1) Conspiracy to wound with intent (串謀有意圖而傷人) L
(2) Carrying imitation firearms with intent to commit
M an arrestable offence (攜帶仿製火器意圖犯可逮捕的罪行) M
N N
---------------------
O O
Reasons for Sentence
P P
---------------------
Q The charges and pleas Q
1. Ling Chi-yip (“D1”), and Wong Chi-wa (“D2”), pleaded guilty to one
R R
count of “conspiracy to wound with intent”, contrary to section 17A of the
S Offences Against the Person Ordinance, Cap. 212, and sections 159A and 159C of S
the Crimes Ordinance, Cap. 200, (Charge 1).
T T
U U
CRT39/25.5.2012/NB 1 DCCC109/2012/Sentence
V V
A A
2. D1 also pleads guilty to one count of possession of imitation firearms,
B contrary to section 20(1) of the Firearms and Ammunition Ordinance, Cap. 238, B
(Charge 2).
C C
D 3. Charge 1 concerns a conspiracy formed in Hong Kong in November D
2011 by D1, D2, and a male known as “Tai Keung” to unlawfully and maliciously
E E
wound Sin Kwok-lam with an intent to do him grievous bodily harm.
F F
4. Charge 2 concerns three air pistols found in the bathroom of D1 on 30
G G
November 2011.
H H
The Facts
I I
Charge 2 (against D1 only)
J 5. In the afternoon of 30 November 2011, the police executed a search J
warrant at D1’s flat at Tai Wo Estate. D1, who was present inside the flat, led the
K K
officers to his room where he retrieved three imitation firearms, namely three air
L guns contained in a bag. L
M M
6. The appearance of the three fake airguns brings them within the
N definition of ‘imitation firearms’ under the Firearms and Ammunition Ordinance, N
Cap. 238.
O O
P 7. D1 was arrested. He stated under caution that the air guns were P
fakes. He said he had a photo of the intended victim in his wallet. The fake
Q Q
guns were his and they had nothing to do with his family members found in the
R flat. R
S S
8. The police found from the wallet of D1 a photo of Sin Kwok-lam, the
T
target victim of the Conspiracy to Wound with Intent charge. Together with the T
photo was a piece of paper on which an address in Kwun Tong was written.
U U
CRT39/25.5.2012/NB 2 DCCC109/2012/Sentence
V V
A A
Charge 2 (against D1 and D2)
B 9. Investigation revealed that D2 was the person who asked D1 to carry B
out a knife attack on the victim. The police arrested D2 on 1 December 2011.
C C
D 10. The police conducted three video-recorded interviews with D1 D
between 30 November 2011 and 1 December 2011. D1 admitted, inter alia, the
E E
following:
F F
(1) As his friend “Chi Wa”, ie D2, whom he knew for about
G G
six months then, was aware that he was short of money.
H D2 proposed a plan to D1 when they met at Golden Era H
Plaza in Mong Kok sometime in November;
I I
J (2) D2 gave him a photo attached with a piece of paper with J
an address, and asked him to find someone to chop the
K K
younger man (i.e. the victim) depicted in the photo one to
L two times with a knife; D1 agreed to carry out the attack; L
D1 was further instructed that the attack could be carried
M M
out at any time, preferably as soon as possible;
N N
(3) When D1 was ready to carry out that attack, he should
O O
call D2 who would tell him about the victim’s
P whereabouts; P
Q Q
(4) D1 would be rewarded a sum of $30,000 when the job
R was completed; R
S S
(5) D1 did not know the name or occupation of the victim;
T T
(6) However, as D1 saw the victim appeared with the son of a
U U
famous Kung Fu master in the photo, D1 took the view
CRT39/25.5.2012/NB 3 DCCC109/2012/Sentence
V V
A A
that the victim must be good at Kung Fu. So he
B borrowed three faked airguns from his friend; B
C C
(7) D1 was shown the photo and the piece of paper on which
D the Kwun Tong address was written that were found from D
D1’s wallet; he confirmed they were given to him by D2
E E
and D1 was instructed to chop the younger one depicted
F in the photo, ie the victim. F
G G
(8) D1 identified the three imitation firearms seized from the
H flat. H
I I
(9) D1 was shown the two mobile phones seized from him at
J the time of his arrest; D1 identified the one that he used to J
contact D2; D1 also retrieved the phone number of D2
K K
from his phone.
L L
11. On 1 December 2011 the police conducted three video recorded
M M
interviews with D2, during which he admitted, inter alia, the following:
N N
(1) In the evening of 24 November 2011, his friend “Tai
O O
Keung” passed him a photo and a piece of paper and
P asked him to carry out a knife attack on the younger man P
depicted in the photo; D2 would be rewarded $50,000
Q Q
after the job was completed; he was told that the victim
R visited the address stated on the paper everyday; R
S S
(2) He met his friend “Ah B”, ie D1, at Golden Era Plaza; he
T passed the photo and the paper to D1 and asked D1 to T
carry out the attack at a reward of $35,000;
U U
CRT39/25.5.2012/NB 4 DCCC109/2012/Sentence
V V
A A
(3) He did not specify the date of carrying out the attack;
B however, he had given $5,000 to D1 first and told D1 that B
the remaining $30,000 will be paid after the job was
C C
completed;
D D
(4) Only D1, D2 and “Tai Keung” knew about the plan of the
E E
attack;
F F
(5) D2 was shown the photo and the piece of paper found
G G
from D1’s wallet and he confirmed they were given to
H him by “Tai Keung” and he passed them to D1. H
I I
12. Mr Sin Kwok-lam confirmed that he is the person depicted in the
J photo seized from D1. The Kwun Tong address on the paper was his office J
address which he attended every day.
K K
L 13. Calls records of mobile phones seized from D1 and D2 showed that L
various calls were made between D1 and D2 between 24 November 2011 and 29
M M
November 2011.
N N
The Criminal Record and Antecedent Statement
O O
D1
P 14. The Criminal Record Summary of D1 reveals that he has 21 P
conviction records with no previous similar, the previous convictions included
Q Q
“Theft”, “Burglary”, “Breach of Probation Order”, “Escaping From Legal
R Custody”, “Robbery”, “Attempted Robbery”, “Possession of Dangerous Drugs”, R
“Resisting a Police Officer”, “Possession of Instrument Fit for Unlawful Purpose”
S S
and “Offering/Exposing for Sale Infringing Copies of Copyright Works”, recorded
T between 1987 and 2009. T
U U
CRT39/25.5.2012/NB 5 DCCC109/2012/Sentence
V V
A A
15. D1 is now 38 years old. He had received Form 3 education in Hong
B Kong. He worked as a delivery worker at a time of his arrest. A divorcee, he B
resided with his parents and siblings at Tai Wo Estate.
C C
D D2 D
16. The Criminal Record Summary of D2 shows that he has previous
E E
convictions for “Robbery” in 1987 and “Possession of Dangerous Drugs in 1999.
F F
17. D2 is now 41 years of age. He had only received Form 1 education.
G G
He was unemployed at the time of his arrest and he depended upon public
H assistance. He is single and lived alone at a flat in Mongkok. H
I I
Mitigation
J D1 J
18. Mr Fenton primarily submits that:
K K
L (1) D1’s guilty pleas to Charge 1 and 2 deserve the usual full L
one-third reduction;
M M
N (2) For Charge 1, after D1 had joined the knife attack N
agreement; he changed his mind subsequently.
O O
Although in law D1 is still guilty of the offence; his
P pulling out from the conspiracy is a strong mitigating P
factor;
Q Q
R (3) D1 intended to use the imitation firearms to scare the R
victim before chopping him with a knife. Charge 2 is
S S
closely connected to Charge 1 that its sentence should run
T partly, if not wholly concurrent with the sentence for T
Charge 1.
U U
CRT39/25.5.2012/NB 6 DCCC109/2012/Sentence
V V
A A
19. In the course of his submissions, Mr Fenton draws my attention to
B certain answers given by D1 in one of his video recorded interviews. Mr Fenton B
also draws my attention to the case DCCC325, 326 and 340 of 2010. The
C C
defendant in that case pleaded guilty to various charges, including two counts of
D Conspiracy to Wound with Intent”. D
E E
D2
F 20. Mr Hemmings tells me in mitigation that there is not much he can say F
about the offence itself. D2 allowed himself to be seduced by money and acted as
G G
a middleman. D2 is sorry that he involved himself in the conspiracy but he is
H relieved to know that the knife attack was not carried out. H
I I
21. Mr Hemmings draws my attention to the starting point taken by
J Deputy Judge Dufton in DCCC325, 326 and 340 of 2010. He submits that the J
starting point in this case should not exceed 4 years. The conspiracy was
K K
unsophisticated and not carried out.
L L
22. The previous convictions for robbery took place when D2 was only 16
M and he is now 41. D2 has a supportive family, something that he failed to realise M
until after he was remanded in custody. D2 regrets that he cannot take care of his
N N
mother now.
O O
P
23. Mr Hemmings asked me to give D2 full discount for his guilty plea. P
As soon as D2 was arrested, he cooperated with the police and confessed in similar
Q Q
terms as D1 did.
R R
24. D2 did not instigate the attack plan; he was approached by Tai Keung.
S He passed the photo to D1. It was not in D2’s contemplation that anything other S
than a knife would be used in the attack.
T T
U U
CRT39/25.5.2012/NB 7 DCCC109/2012/Sentence
V V
A A
Discussion
B Charge 1 B
25. The defendant in DCCC325, 326 and 340 of 2010 pleaded guilty to
C C
various charges arising from an undercover operation, where a police officer
D infiltrated a triad society. The operation turned overt in September 2009. The D
defendant, in that case, had a clear record prior to these offences.
E E
F 26. The defendant in that case pleaded guilty to two counts of conspiracy F
to wound with intent. Mr Fenton and Mr Hemmings draw my attention to the
G G
conspiracy to wound with intent (Charge 3) in DCCC340/2010. The learned
H judge summarises the facts pertaining to the charge in paragraphs 8 for the Reasons H
for Sentence, which reads:
I I
J “8. On 6 July 2009 the defendant and PW1 were asked by D1 J
to attack a drug trafficker who had been very rude to him.
K They met at D1’s home on 8 July when they planned to K
attack the male with knives, but to chop him on his body
and limbs only, but not on or above the neck so that the
L L
blows will not be fatal. On 9 July the wife of D1 took the
defendant and PW1 to the building where the male
M resided. The plan to attack the male was, however, M
postponed, Charge 3.”
N N
27. In paragraph 12, the learned judge explains why he thinks a starting
O O
point of 4 years should be adopted.
P P
“12. Had the planned attack been carried out resulting in chop
Q Q
wounds to the body a sentence of no less than five years’
imprisonment would have been appropriate and may well
R have been substantially more depending on the severity of R
the injuries. Some steps were taken in preparation for
S an attack by viewing the building where the male resided. S
Whilst the attack was not carried out, this was still
T
contemplated having only been postponed. In the T
circumstances I take 4 years’ imprisonment as my starting
point.”
U U
CRT39/25.5.2012/NB 8 DCCC109/2012/Sentence
V V
A A
28. Mr Fenton submits that D1 in fact had withdrawn from the knife
B attack plan that he once agreed to carry out. B
C C
29. He draws my attention to various answers given by D1 in this video
D recorded interview. In short, D1 says D2 approached him on 4 or 5 November D
2011 and asked him to attack the victim with a knife, D1 was asked to carry out the
E E
attack the following day or as soon as possible. D1 hesitated. He did not
F answer D2’s calls. He had no confidence and did not want to do it. D1 obtained F
the guns as he thought he could scare the victim with the guns. At the end D1
G G
thought the knife attack plan was not going to work, the guns were not really
H useful and he avoided D2’s calls. H
I I
30. Mr Fenton submits by the end of November 2011, D1 was either
J avoiding D2’s calls or that he was delaying the situation indefinitely. It was quite J
unlikely that the chopping would take place. Hence a lower starting point should
K K
be taken.
L L
31. In the case cited by Mr Fenton, Deputy Judge Dufton took 4 years as
M the starting point because the attack plan was only postponed. But in the M
presence case, D1 was thinking it was highly unlikely that he would carry out the
N N
attack.
O O
P
32. Mr Fenton submits the starting point in the present case should be less P
than 4 years. He submits a starting point of 3 years is appropriate.
Q Q
33. Mr Fenton submits as soon as D1 was arrested, he confessed to the
R R
police. He gave a cautioned interview, giving full details of D2’s particulars. It
S adds credence to D1’s case that he was not going to carry out the attack. S
T 34. Ms. Ko for the prosecution tells me that D1 in his second video T
recorded interview clarified the date he was approached by D2. D1 said it was
U U
about 10 days before his arrest that he was approached by D2.
CRT39/25.5.2012/NB 9 DCCC109/2012/Sentence
V V
A A
B 35. There are some similarities between the facts in the present case and B
the facts in DCCC340/2010. Both conspiracies concerned knife attack plan on
C C
targeted victims. There was some degree of planning in the present case, as in
D DCCC340. The photo of the targeted victim and his office address were provided D
to D1. D2 acted as a middleman between D1 and “Tai Keung”. As in
E E
DCCC340, it was contemplated that the attack on Mr Sin would be carried out by
F more than one attacker. F
G G
36. In the present case, I take the view, as Deputy Judge Dufton did in
H DCCC340/2010, that had the planned attack on Mr Sin been carried resulting in H
chop wounds to the body a sentence of at least 5 years’ imprisonment would have
I I
been appropriate and “may have been substantially more depending on the severity
J of the injuries”. J
K K
37. Given that the attack was not carried out, a lower starting point of 4
L years' imprisonment should be taken. L
M 38. In the case of D1, though he had told the police in his video recorded M
interview that he had no confidence, he did not want to do the job and avoided
N N
D2’s calls. D1 also told the police, at counter 32B, that he had not yet found
O O
someone who would carry out the attack with him. At 138B, D1 told the police
P
he thought at first it sounded very simple to get one or two persons. At 148B, D1 P
said he kept hesitating after he learnt that the targeted victim was probably good at
Q Q
Kung Fu. D1 went on to explain he then thought of getting some faked guns to
R
scare the victim so that D1 could chop him successfully. At 265B, D1 said it had R
been one week or so between the time D2 asked D1 to wound the targeted victim
S S
and the time D1 obtained the fake guns from his friend. He asked for and
T
obtained from his friend “Chi Wa” the fake guns on the Sunday before his arrest. T
D1 was arrested in the afternoon of 30 November 2011; he obtained the fake guns
U U
in the evening on 27 November 2011 (counters 167A to 186B, 266C and 267B).
CRT39/25.5.2012/NB 10 DCCC109/2012/Sentence
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A A
B 39. It is obvious from the above that, after D1 had agreed to check the B
victim for money, he tried to look for one or two partners, but in vain. He then
C C
contemplated using some fake guns to scare the victim before the chopping; he
D asked for and obtained some fake guns on the evening on 27 November 2011. He D
was arrested in the afternoon of 30 November 2011. In addition, paragraph 9 of
E E
the Summary of Facts shows that various phone calls were made between D1 and
F D2 between 24 and 29 November 2011. F
G G
40. I do not believe D1 had pulled out from the attack plan or he had no
H intention to carry out the attack on the victim. D1 had been trying to look for H
some helpers, though in vain. He obtained some faked guns for the purpose of
I I
carrying out the attack three days before his arrest. I do not accept his
J submissions that D1 had pulled out from the conspiracy at the time of his arrest, J
and I would not allow D1 any further reduction for his claim that he had withdrawn
K K
from the conspiracy. The knife attack was still being contemplated, as evidenced
L by D1’s obtaining the imitation firearms on 27 November 2011. The knife attack L
plan was in a stalemate only because: (i) D1 was unable to recruit any helper; and
M M
(ii) D1 hesitated and lacked confidence.
N N
41. In the case of D2, it is fortuitous that the attack was not carried out.
O O
D2 played a role of the middleman, and he did that for money. In fairness to D2,
P it was not in his contemplation that anything other than a knife will be used in the P
attack.
Q Q
R
42. On the facts before me, for Charge 1, I would adopt a starting point of R
4 years' imprisonment.
S S
43. D1 and D2 are both entitled to one-third reduction for their guilty
T T
pleas.
U U
44. There is no other mitigating factor apart from the guilty pleas.
CRT39/25.5.2012/NB 11 DCCC109/2012/Sentence
V V
A A
B 45. For the reasons given, on Charge 1, I sentence D1 and D2 each to 32 B
months' imprisonment.
C C
D Charge 2 D
46. The maximum sentence for the offence of possession of imitation
E firearms is 2 years' imprisonment. E
F F
47. In sentencing D1 for Charge 1, I have not taken into account the
G intended use of the imitation firearms. It is obvious that the use of the imitation G
firearms was something contemplated by D1 alone.
H H
I 48. I have seen the three imitation firearms. They are all hand pistols. I
The Smith & Wesson revolver and the Beretta pistol are both very realistic, though
J J
the third silver-coloured pistol looks quite like a toy gun. These imitation
K firearms, if produced to the targeted victim during the knife attack, could easily put K
the victim in fear.
L L
M 49. Bearing in mind the intended use of these imitation firearms, ie that M
D1 intended to use them to scare the victim during the knife attack, in my
N N
judgment, a starting point of 18 months' imprisonment is appropriate.
O O
50. D1 is entitled to one-third reduction for his guilty plea.
P P
51. For the reasons given, on Charge 2, I sentence D1 to 12 months'
Q Q
imprisonment.
R R
Totality for D1
S S
52. D1’s possession of the imitation firearms was closely related to the
T knife attack plan, which for the reasons I identified, was not carried out. The T
sentence for Charge 2 should run partly consecutive to the sentence for Charge 1.
U U
In my final assessment a total sentence of 3 years should adequately reflect D1’s
CRT39/25.5.2012/NB 12 DCCC109/2012/Sentence
V V
A A
overall culpability for both offences. To achieve that end I order 4 months of the
B sentence for Charge 2 shall run consecutively to D1’s sentence for Charge 1. D1 B
is sentenced to a total term of three years' imprisonment.
C C
D D
E E
F (Johnny Chan) F
Deputy District Judge
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT39/25.5.2012/NB 13 DCCC109/2012/Sentence
V V
A A
DCCC109/2012
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO. 109 OF 2012 C
D ---------------------- D
E HKSAR E
v.
F F
Ling Chi-yip (D1)
G Wong Chi-wa (D2) G
H ---------------------- H
I Before: Deputy District Judge Johnny Chan I
Date: 25 May 2012 at 10.09 am
Present: Ms Catherine Ko, SPP of the Department of Justice, for HKSAR
J J
Mr Jeffrey George Fenton, instructed by S H Chan & Co, for the 1st
Defendant
K Mr John Hemmings, instructed by T C Lau & Co, for the 2nd K
Defendant
L Offence: (1) Conspiracy to wound with intent (串謀有意圖而傷人) L
(2) Carrying imitation firearms with intent to commit
M an arrestable offence (攜帶仿製火器意圖犯可逮捕的罪行) M
N N
---------------------
O O
Reasons for Sentence
P P
---------------------
Q The charges and pleas Q
1. Ling Chi-yip (“D1”), and Wong Chi-wa (“D2”), pleaded guilty to one
R R
count of “conspiracy to wound with intent”, contrary to section 17A of the
S Offences Against the Person Ordinance, Cap. 212, and sections 159A and 159C of S
the Crimes Ordinance, Cap. 200, (Charge 1).
T T
U U
CRT39/25.5.2012/NB 1 DCCC109/2012/Sentence
V V
A A
2. D1 also pleads guilty to one count of possession of imitation firearms,
B contrary to section 20(1) of the Firearms and Ammunition Ordinance, Cap. 238, B
(Charge 2).
C C
D 3. Charge 1 concerns a conspiracy formed in Hong Kong in November D
2011 by D1, D2, and a male known as “Tai Keung” to unlawfully and maliciously
E E
wound Sin Kwok-lam with an intent to do him grievous bodily harm.
F F
4. Charge 2 concerns three air pistols found in the bathroom of D1 on 30
G G
November 2011.
H H
The Facts
I I
Charge 2 (against D1 only)
J 5. In the afternoon of 30 November 2011, the police executed a search J
warrant at D1’s flat at Tai Wo Estate. D1, who was present inside the flat, led the
K K
officers to his room where he retrieved three imitation firearms, namely three air
L guns contained in a bag. L
M M
6. The appearance of the three fake airguns brings them within the
N definition of ‘imitation firearms’ under the Firearms and Ammunition Ordinance, N
Cap. 238.
O O
P 7. D1 was arrested. He stated under caution that the air guns were P
fakes. He said he had a photo of the intended victim in his wallet. The fake
Q Q
guns were his and they had nothing to do with his family members found in the
R flat. R
S S
8. The police found from the wallet of D1 a photo of Sin Kwok-lam, the
T
target victim of the Conspiracy to Wound with Intent charge. Together with the T
photo was a piece of paper on which an address in Kwun Tong was written.
U U
CRT39/25.5.2012/NB 2 DCCC109/2012/Sentence
V V
A A
Charge 2 (against D1 and D2)
B 9. Investigation revealed that D2 was the person who asked D1 to carry B
out a knife attack on the victim. The police arrested D2 on 1 December 2011.
C C
D 10. The police conducted three video-recorded interviews with D1 D
between 30 November 2011 and 1 December 2011. D1 admitted, inter alia, the
E E
following:
F F
(1) As his friend “Chi Wa”, ie D2, whom he knew for about
G G
six months then, was aware that he was short of money.
H D2 proposed a plan to D1 when they met at Golden Era H
Plaza in Mong Kok sometime in November;
I I
J (2) D2 gave him a photo attached with a piece of paper with J
an address, and asked him to find someone to chop the
K K
younger man (i.e. the victim) depicted in the photo one to
L two times with a knife; D1 agreed to carry out the attack; L
D1 was further instructed that the attack could be carried
M M
out at any time, preferably as soon as possible;
N N
(3) When D1 was ready to carry out that attack, he should
O O
call D2 who would tell him about the victim’s
P whereabouts; P
Q Q
(4) D1 would be rewarded a sum of $30,000 when the job
R was completed; R
S S
(5) D1 did not know the name or occupation of the victim;
T T
(6) However, as D1 saw the victim appeared with the son of a
U U
famous Kung Fu master in the photo, D1 took the view
CRT39/25.5.2012/NB 3 DCCC109/2012/Sentence
V V
A A
that the victim must be good at Kung Fu. So he
B borrowed three faked airguns from his friend; B
C C
(7) D1 was shown the photo and the piece of paper on which
D the Kwun Tong address was written that were found from D
D1’s wallet; he confirmed they were given to him by D2
E E
and D1 was instructed to chop the younger one depicted
F in the photo, ie the victim. F
G G
(8) D1 identified the three imitation firearms seized from the
H flat. H
I I
(9) D1 was shown the two mobile phones seized from him at
J the time of his arrest; D1 identified the one that he used to J
contact D2; D1 also retrieved the phone number of D2
K K
from his phone.
L L
11. On 1 December 2011 the police conducted three video recorded
M M
interviews with D2, during which he admitted, inter alia, the following:
N N
(1) In the evening of 24 November 2011, his friend “Tai
O O
Keung” passed him a photo and a piece of paper and
P asked him to carry out a knife attack on the younger man P
depicted in the photo; D2 would be rewarded $50,000
Q Q
after the job was completed; he was told that the victim
R visited the address stated on the paper everyday; R
S S
(2) He met his friend “Ah B”, ie D1, at Golden Era Plaza; he
T passed the photo and the paper to D1 and asked D1 to T
carry out the attack at a reward of $35,000;
U U
CRT39/25.5.2012/NB 4 DCCC109/2012/Sentence
V V
A A
(3) He did not specify the date of carrying out the attack;
B however, he had given $5,000 to D1 first and told D1 that B
the remaining $30,000 will be paid after the job was
C C
completed;
D D
(4) Only D1, D2 and “Tai Keung” knew about the plan of the
E E
attack;
F F
(5) D2 was shown the photo and the piece of paper found
G G
from D1’s wallet and he confirmed they were given to
H him by “Tai Keung” and he passed them to D1. H
I I
12. Mr Sin Kwok-lam confirmed that he is the person depicted in the
J photo seized from D1. The Kwun Tong address on the paper was his office J
address which he attended every day.
K K
L 13. Calls records of mobile phones seized from D1 and D2 showed that L
various calls were made between D1 and D2 between 24 November 2011 and 29
M M
November 2011.
N N
The Criminal Record and Antecedent Statement
O O
D1
P 14. The Criminal Record Summary of D1 reveals that he has 21 P
conviction records with no previous similar, the previous convictions included
Q Q
“Theft”, “Burglary”, “Breach of Probation Order”, “Escaping From Legal
R Custody”, “Robbery”, “Attempted Robbery”, “Possession of Dangerous Drugs”, R
“Resisting a Police Officer”, “Possession of Instrument Fit for Unlawful Purpose”
S S
and “Offering/Exposing for Sale Infringing Copies of Copyright Works”, recorded
T between 1987 and 2009. T
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CRT39/25.5.2012/NB 5 DCCC109/2012/Sentence
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A A
15. D1 is now 38 years old. He had received Form 3 education in Hong
B Kong. He worked as a delivery worker at a time of his arrest. A divorcee, he B
resided with his parents and siblings at Tai Wo Estate.
C C
D D2 D
16. The Criminal Record Summary of D2 shows that he has previous
E E
convictions for “Robbery” in 1987 and “Possession of Dangerous Drugs in 1999.
F F
17. D2 is now 41 years of age. He had only received Form 1 education.
G G
He was unemployed at the time of his arrest and he depended upon public
H assistance. He is single and lived alone at a flat in Mongkok. H
I I
Mitigation
J D1 J
18. Mr Fenton primarily submits that:
K K
L (1) D1’s guilty pleas to Charge 1 and 2 deserve the usual full L
one-third reduction;
M M
N (2) For Charge 1, after D1 had joined the knife attack N
agreement; he changed his mind subsequently.
O O
Although in law D1 is still guilty of the offence; his
P pulling out from the conspiracy is a strong mitigating P
factor;
Q Q
R (3) D1 intended to use the imitation firearms to scare the R
victim before chopping him with a knife. Charge 2 is
S S
closely connected to Charge 1 that its sentence should run
T partly, if not wholly concurrent with the sentence for T
Charge 1.
U U
CRT39/25.5.2012/NB 6 DCCC109/2012/Sentence
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A A
19. In the course of his submissions, Mr Fenton draws my attention to
B certain answers given by D1 in one of his video recorded interviews. Mr Fenton B
also draws my attention to the case DCCC325, 326 and 340 of 2010. The
C C
defendant in that case pleaded guilty to various charges, including two counts of
D Conspiracy to Wound with Intent”. D
E E
D2
F 20. Mr Hemmings tells me in mitigation that there is not much he can say F
about the offence itself. D2 allowed himself to be seduced by money and acted as
G G
a middleman. D2 is sorry that he involved himself in the conspiracy but he is
H relieved to know that the knife attack was not carried out. H
I I
21. Mr Hemmings draws my attention to the starting point taken by
J Deputy Judge Dufton in DCCC325, 326 and 340 of 2010. He submits that the J
starting point in this case should not exceed 4 years. The conspiracy was
K K
unsophisticated and not carried out.
L L
22. The previous convictions for robbery took place when D2 was only 16
M and he is now 41. D2 has a supportive family, something that he failed to realise M
until after he was remanded in custody. D2 regrets that he cannot take care of his
N N
mother now.
O O
P
23. Mr Hemmings asked me to give D2 full discount for his guilty plea. P
As soon as D2 was arrested, he cooperated with the police and confessed in similar
Q Q
terms as D1 did.
R R
24. D2 did not instigate the attack plan; he was approached by Tai Keung.
S He passed the photo to D1. It was not in D2’s contemplation that anything other S
than a knife would be used in the attack.
T T
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CRT39/25.5.2012/NB 7 DCCC109/2012/Sentence
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A A
Discussion
B Charge 1 B
25. The defendant in DCCC325, 326 and 340 of 2010 pleaded guilty to
C C
various charges arising from an undercover operation, where a police officer
D infiltrated a triad society. The operation turned overt in September 2009. The D
defendant, in that case, had a clear record prior to these offences.
E E
F 26. The defendant in that case pleaded guilty to two counts of conspiracy F
to wound with intent. Mr Fenton and Mr Hemmings draw my attention to the
G G
conspiracy to wound with intent (Charge 3) in DCCC340/2010. The learned
H judge summarises the facts pertaining to the charge in paragraphs 8 for the Reasons H
for Sentence, which reads:
I I
J “8. On 6 July 2009 the defendant and PW1 were asked by D1 J
to attack a drug trafficker who had been very rude to him.
K They met at D1’s home on 8 July when they planned to K
attack the male with knives, but to chop him on his body
and limbs only, but not on or above the neck so that the
L L
blows will not be fatal. On 9 July the wife of D1 took the
defendant and PW1 to the building where the male
M resided. The plan to attack the male was, however, M
postponed, Charge 3.”
N N
27. In paragraph 12, the learned judge explains why he thinks a starting
O O
point of 4 years should be adopted.
P P
“12. Had the planned attack been carried out resulting in chop
Q Q
wounds to the body a sentence of no less than five years’
imprisonment would have been appropriate and may well
R have been substantially more depending on the severity of R
the injuries. Some steps were taken in preparation for
S an attack by viewing the building where the male resided. S
Whilst the attack was not carried out, this was still
T
contemplated having only been postponed. In the T
circumstances I take 4 years’ imprisonment as my starting
point.”
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CRT39/25.5.2012/NB 8 DCCC109/2012/Sentence
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A A
28. Mr Fenton submits that D1 in fact had withdrawn from the knife
B attack plan that he once agreed to carry out. B
C C
29. He draws my attention to various answers given by D1 in this video
D recorded interview. In short, D1 says D2 approached him on 4 or 5 November D
2011 and asked him to attack the victim with a knife, D1 was asked to carry out the
E E
attack the following day or as soon as possible. D1 hesitated. He did not
F answer D2’s calls. He had no confidence and did not want to do it. D1 obtained F
the guns as he thought he could scare the victim with the guns. At the end D1
G G
thought the knife attack plan was not going to work, the guns were not really
H useful and he avoided D2’s calls. H
I I
30. Mr Fenton submits by the end of November 2011, D1 was either
J avoiding D2’s calls or that he was delaying the situation indefinitely. It was quite J
unlikely that the chopping would take place. Hence a lower starting point should
K K
be taken.
L L
31. In the case cited by Mr Fenton, Deputy Judge Dufton took 4 years as
M the starting point because the attack plan was only postponed. But in the M
presence case, D1 was thinking it was highly unlikely that he would carry out the
N N
attack.
O O
P
32. Mr Fenton submits the starting point in the present case should be less P
than 4 years. He submits a starting point of 3 years is appropriate.
Q Q
33. Mr Fenton submits as soon as D1 was arrested, he confessed to the
R R
police. He gave a cautioned interview, giving full details of D2’s particulars. It
S adds credence to D1’s case that he was not going to carry out the attack. S
T 34. Ms. Ko for the prosecution tells me that D1 in his second video T
recorded interview clarified the date he was approached by D2. D1 said it was
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about 10 days before his arrest that he was approached by D2.
CRT39/25.5.2012/NB 9 DCCC109/2012/Sentence
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A A
B 35. There are some similarities between the facts in the present case and B
the facts in DCCC340/2010. Both conspiracies concerned knife attack plan on
C C
targeted victims. There was some degree of planning in the present case, as in
D DCCC340. The photo of the targeted victim and his office address were provided D
to D1. D2 acted as a middleman between D1 and “Tai Keung”. As in
E E
DCCC340, it was contemplated that the attack on Mr Sin would be carried out by
F more than one attacker. F
G G
36. In the present case, I take the view, as Deputy Judge Dufton did in
H DCCC340/2010, that had the planned attack on Mr Sin been carried resulting in H
chop wounds to the body a sentence of at least 5 years’ imprisonment would have
I I
been appropriate and “may have been substantially more depending on the severity
J of the injuries”. J
K K
37. Given that the attack was not carried out, a lower starting point of 4
L years' imprisonment should be taken. L
M 38. In the case of D1, though he had told the police in his video recorded M
interview that he had no confidence, he did not want to do the job and avoided
N N
D2’s calls. D1 also told the police, at counter 32B, that he had not yet found
O O
someone who would carry out the attack with him. At 138B, D1 told the police
P
he thought at first it sounded very simple to get one or two persons. At 148B, D1 P
said he kept hesitating after he learnt that the targeted victim was probably good at
Q Q
Kung Fu. D1 went on to explain he then thought of getting some faked guns to
R
scare the victim so that D1 could chop him successfully. At 265B, D1 said it had R
been one week or so between the time D2 asked D1 to wound the targeted victim
S S
and the time D1 obtained the fake guns from his friend. He asked for and
T
obtained from his friend “Chi Wa” the fake guns on the Sunday before his arrest. T
D1 was arrested in the afternoon of 30 November 2011; he obtained the fake guns
U U
in the evening on 27 November 2011 (counters 167A to 186B, 266C and 267B).
CRT39/25.5.2012/NB 10 DCCC109/2012/Sentence
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A A
B 39. It is obvious from the above that, after D1 had agreed to check the B
victim for money, he tried to look for one or two partners, but in vain. He then
C C
contemplated using some fake guns to scare the victim before the chopping; he
D asked for and obtained some fake guns on the evening on 27 November 2011. He D
was arrested in the afternoon of 30 November 2011. In addition, paragraph 9 of
E E
the Summary of Facts shows that various phone calls were made between D1 and
F D2 between 24 and 29 November 2011. F
G G
40. I do not believe D1 had pulled out from the attack plan or he had no
H intention to carry out the attack on the victim. D1 had been trying to look for H
some helpers, though in vain. He obtained some faked guns for the purpose of
I I
carrying out the attack three days before his arrest. I do not accept his
J submissions that D1 had pulled out from the conspiracy at the time of his arrest, J
and I would not allow D1 any further reduction for his claim that he had withdrawn
K K
from the conspiracy. The knife attack was still being contemplated, as evidenced
L by D1’s obtaining the imitation firearms on 27 November 2011. The knife attack L
plan was in a stalemate only because: (i) D1 was unable to recruit any helper; and
M M
(ii) D1 hesitated and lacked confidence.
N N
41. In the case of D2, it is fortuitous that the attack was not carried out.
O O
D2 played a role of the middleman, and he did that for money. In fairness to D2,
P it was not in his contemplation that anything other than a knife will be used in the P
attack.
Q Q
R
42. On the facts before me, for Charge 1, I would adopt a starting point of R
4 years' imprisonment.
S S
43. D1 and D2 are both entitled to one-third reduction for their guilty
T T
pleas.
U U
44. There is no other mitigating factor apart from the guilty pleas.
CRT39/25.5.2012/NB 11 DCCC109/2012/Sentence
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A A
B 45. For the reasons given, on Charge 1, I sentence D1 and D2 each to 32 B
months' imprisonment.
C C
D Charge 2 D
46. The maximum sentence for the offence of possession of imitation
E firearms is 2 years' imprisonment. E
F F
47. In sentencing D1 for Charge 1, I have not taken into account the
G intended use of the imitation firearms. It is obvious that the use of the imitation G
firearms was something contemplated by D1 alone.
H H
I 48. I have seen the three imitation firearms. They are all hand pistols. I
The Smith & Wesson revolver and the Beretta pistol are both very realistic, though
J J
the third silver-coloured pistol looks quite like a toy gun. These imitation
K firearms, if produced to the targeted victim during the knife attack, could easily put K
the victim in fear.
L L
M 49. Bearing in mind the intended use of these imitation firearms, ie that M
D1 intended to use them to scare the victim during the knife attack, in my
N N
judgment, a starting point of 18 months' imprisonment is appropriate.
O O
50. D1 is entitled to one-third reduction for his guilty plea.
P P
51. For the reasons given, on Charge 2, I sentence D1 to 12 months'
Q Q
imprisonment.
R R
Totality for D1
S S
52. D1’s possession of the imitation firearms was closely related to the
T knife attack plan, which for the reasons I identified, was not carried out. The T
sentence for Charge 2 should run partly consecutive to the sentence for Charge 1.
U U
In my final assessment a total sentence of 3 years should adequately reflect D1’s
CRT39/25.5.2012/NB 12 DCCC109/2012/Sentence
V V
A A
overall culpability for both offences. To achieve that end I order 4 months of the
B sentence for Charge 2 shall run consecutively to D1’s sentence for Charge 1. D1 B
is sentenced to a total term of three years' imprisonment.
C C
D D
E E
F (Johnny Chan) F
Deputy District Judge
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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CRT39/25.5.2012/NB 13 DCCC109/2012/Sentence
V V