DCCC317/2022 HKSAR v. AU YEUNG KA WAI AND ANOTHER - LawHero
DCCC317/2022
HKSAR v. AU YEUNG KA WAI AND ANOTHER
區域法院（刑事）His Honour Judge E Yip4/10/2023[2023] HKDC 1413
DCCC317/2022
A A
B B
DCCC 317/2022
[2023] HKDC 1413
C C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 317 OF 2022
F F
————————
G G
HKSAR
H v H
AU YEUNG KA WAI (D1)
I I
WONG WAI LUN (D3)
————————
J J
K Before: His Honour Judge E Yip K
Date: 5 October 2023
L L
Present: Mr Anson Lai, Public Prosecutor, for HKSAR
M Mr Jeffrey Sham C F, instructed by James W L Li & Co, M
assigned by the Director of Legal Aid, for the 1st Defendant
N N
Mr Jimmy Ma Y T, instructed by Jackson Ho & Co,
O assigned by the Director of Legal Aid, for the 3rd Defendant O
Offences: [1] Wounding with intent (有意圖而傷人)
P P
[3] Blackmail (勒索罪)
Q [4] Theft (盜竊罪) Q
R R
————————————————
S REASONS FOR SENTENCE S
————————————————
T T
U U
V V
-2-
A A
B B
Charges
C C
1. D1 and D3 plead guilty to the following charges:
D D
E (1) Wounding with intent, contrary to section 17(a) of the E
Offences against the Person Ordinance, Cap 212,
F F
against D1 and D3, together with two unknown
G persons; G
H H
(3) Blackmail, contrary to section 23(1) and (3) of the
I Theft Ordinance, Cap 210, against D1 and D3, together I
with two unknown persons;
J J
K (4) Theft, contrary to section 9 of the Theft Ordinance, K
Cap 210, against D1 and D3, together with two
L L
unknown persons.
M M
Facts
N N
O The events constituting Charge 1 (wounding with intent, against D1 and O
D3 and others)
P P
Q Q
2. In early July 2020, X came to know D2 via a dating
R
application. They had consensual sexual intercourse in July and August R
2020. After that they did not contact each other.
S S
T
3. On 21 July 2020, X asked D2 to meet up in a room at Kowloon T
Hotel. At around 1930 hours, when X and D2 were inside the room, D2
U U
V V
-3-
A A
B B
said that she wanted to order takeaway. She opened the door for D1, D3
C and two unknown males (“Male A” and “Male B”). D2 left the room. C
D D
4. After the four entered the room, D3 stood next to the door and
E while holding a folding knife of around 10 cm in length. Male A and Male E
B accused X of having an affair with D2. D1, Male A and Male B then
F F
assaulted X barehanded for about 10 minutes. During the assault, Male A
G searched X’s backpack and found X’s wallet while held the folding knife G
and looking at X without taking part in the assault.
H H
I The events constituting Charge 3 (blackmail, against D1 and D3 and I
others) and Charge 4 (against D1 and D3 and others)
J J
K 5. After the assault, D1 removed X’s shorts and took nude K
photos of X with a mobile phone. D1 demanded $50,000 as that X could
L L
leave. X replied that he did not have the money. D1 asked X to called X’s
M friends to pay but to no avail. Male A asked X to write a debt note for M
$50,000 containing X’s personal information and an admission of having
N N
an affair with X, another person’s wife. Male A and Male B assaulted X
O when X was writing the debt note. O
P P
6. Afterwards, D1 used X’s phone to call X’s friends but to no
Q
avail. D1 told X that he would cut X’s foreskin if X could not pay. At this Q
R
juncture, D3 was still holding the folding knife. X was afraid that D1 R
would publish X’s nude photos if X did not pay D1.
S S
T
7. At around 2130 hours, ie, 2 hours after their entry into the T
room, the four left the room. X checked his wallet and found the loss of
U U
V V
-4-
A A
B B
$2,000 cash, his HKID card and his Octopus card, which had its $200
C remaining value gone missing. C
D D
8. X attended the hospital and was diagnosed to have redness
E and bruising on his left lower eyelid, and laceration on the back of his scalp E
and left lower eyelid. Six stitches were applied to the laceration.
F F
G CCTV footage G
H H
9. The CCTV footage captured as follows:
I I
(1) D1 – D3 and 2 unknown males were inside a room at
J J
Imperial Hotel, later found to be rented by D1 before
K the incident; K
L L
(2) Afterwards, they went to Kowloon Hotel, D1, D3, Male
M A and Male B entered the room where X was; M
N N
(3) After the incident, they returned to Imperial Hotel, D3
O gave D1 some money in the elevator at Imperial Hotel; O
P P
(4) D1 and D3 entered the room there after the incident.
Q Q
R
Nude photos and nude video clip of X R
S S
10. Two nude photos and a 13-second nude video clip of X were
T
found in D1’s phone. T
U U
V V
-5-
A A
B B
What D1 and D3 told the police
C C
11. After arrest and caution by the police:
D D
E (1) D1 said he assaulted X because he got angry after E
discovering D2 had an affair with X;
F F
G (2) D3 said D1 asked him to assault X as X had an affair G
with D2.
H H
I 12. In the cautioned VRIs: I
J J
(1) D1 admitted taking 3 people to assault X in the room
K and taking X’s nude photos; K
L L
(2) D3 admitted meeting D1 and two unknown males in a
M room in another hotel where D1 told them D1 wanted M
to take revenge on X, who had sex with D2 before and
N N
asked D2 to have sex again. D2 went to the room to
O meet X first. A few minutes later, D1 knocked on the O
door and claimed that the takeaway had arrived. D2
P P
opened the door for D1 and him, together with the two
Q Q
unknown males to enter the room. Then D2 left. X was
R
nude on the bed. D1 accused X of having sex with D2 R
and assaulted X with the two unknown males. D1
S S
instructed him to stand next to the door and watch.
T
During the assault, D1 demanded $50,000 from X. X T
called his boss and colleagues for help to pay. They
U U
V V
-6-
A A
B B
threatened to cut off X’s foreskin if X could not pay.
C As X was unable to pay, he offered to write a debt note C
and pay by instalments. The two unknown males took
D D
nude photos of PW1 with a camera. He saw a folding
E knife of about 10 cm in length on a table in the toilet of E
the room. He held it during the assault as he was afraid
F F
that X would take it. After the assault, D1 gave him
G $200 inside the elevator of Imperial Hotel and told him G
to take it as a repayment. He met D1 the next day. D1
H H
told him that D1 had taken money from PW1.
I I
Mitigation
J J
K 13. D1 is 34 years of age. In 2021, he lost his job as a truck driver. K
He is married to D2. They have separated since end of 2020. They have a
L L
7-year-old son and a 5-year-old daughter.
M M
14. He has several criminal records involving assaults of various
N N
degrees and theft. The last of them was in 2016 for assaulting a police
O officer for which he was sentenced to 2 months’ imprisonment. It was O
already 4 years 10 months before the present offences. I do not consider
P P
his previous records a ground for aggravating his sentence here.
Q Q
R
15. D3 is 50 years of age. He has several criminal records R
involving violence and dishonesty. The last of them was in 2015 for
S S
assaulting occasioning actual bodily harm for which he was sentenced to
T
DATC. It was already 5 years 7 months before the present offences. I do T
U U
V V
-7-
A A
B B
not consider his previous records a ground for aggravating his sentence
C here. C
D D
16. He was asked by his friend D1 to assault X for having sex
E with D2. After the offences, he received $200 as D1’s repayment for his E
loan made to D1 beforehand.
F F
G Sentencing considerations G
H H
17. In HKSAR v Tung Pak Fai [2022] HKCA 1470, the Court of
I Appeal summarized the relevant factors when sentencing wounding with I
intent case:
J J
K “21. The relevant factors relevant to sentencing in wounding K
with intent cases were set out in HKSAR v Chan Chun Tat and
endorsed in HKSAR v Jatinder Singh. These include the extent
L to which the assault was premeditated, the reasons or motivation L
underlying the assault upon the victim, the mental or emotional
M state of the assailant at the time of the assault, whether alcohol M
or drugs contributed to the actions of the assailant, whether the
assault was committed by the assailant alone or as part of a
N group, the type of weapons employed, and the level of force or N
aggression and the persistence with which the assault was
O
pressed home, the injuries caused to the victim and the effect of O
the assault upon the victim and those close to him or her (at
paragraph 49, Chan Chun Tat). The list is not meant to be
P exhaustive but it purely demonstrates that the culpability of an P
offender of a wounding with intent charge will relate to the type
of harm intended to be inflicted, the means by which that harm
Q Q
was inflicted and the circumstances generally surrounding the
assault. Given the many imponderables as to why an assailant
R failed to achieve the injuries intended by him, the actual injuries R
caused is only one of the myriad of factors to be take into
account. The gravamen of the offence is in the intent to inflict
S really serious injuries, which is the same intent as that required S
for murder. The lack of serious injuries does not necessarily
T reduce the gravity of the offence or offset the other aggravating T
factors.”
U U
V V
-8-
A A
B B
18. In HKSAR v Ma Tik Lun Dicky, CACC 112/2013, the Court
C of Appeal summarized the aggravating factors for sentencing wounding C
with intent cases as follows:
D D
E
“41. … [T]he aggravating factors for this type of wounding E
case are: (1) the defendant was the principal offender; (2) the
assault was committed in company; (3) the assault was
F unprovoked; (4) the assault took place in a public place; (5) the F
assault went on after the victim had fallen down; (6) the assault
went on after the victim became unable to defend himself; (7)
G G
the victim suffered serious and lasting injuries; (8) at the police
interview, the defendant misled the police as to the facts,
H indicating a lack of remorse…” H
I Sentencing D1 and D3 I
J J
19. D1 was the instigator of all offences. He was motivated by
K jealousy, greed and anger. His plan was to wound and blackmail X to be K
reinforced by recruiting D3 and the two unknown males.
L L
M M
20. On Charge 1 (wounding with intent), I take a starting point of
N
36 months as it was committed with premeditation, with 4 people including N
himself, on and off for 2 hours from 1930 hours to 2130 hours, resulting in
O O
6 stitches to be applied to X’s wound at the hospital. After the one-third
P discount for his plea of guilty, the sentence is 24 months. P
Q Q
21. On Charge 3 (blackmail), X was subject to assault and
R humiliation of nude photo and video taking for ransom of $50,000 and the R
need to provide personal information on the debt note. I take a starting
S S
point of 24 months. After the one-third discount for his plea of guilty, the
T sentence is 16 months. T
U U
V V
-9-
A A
B B
22. On Charge 4 (theft), I take a starting point of 12 months. After
C the one-third discount for his plea of guilty, the sentence is 8 months. C
D D
23. By totality, I make an order for 2 months each of Charges 3
E and 4 to be consecutive to the 24 months on Charge 1. The total sentence E
is 28 months.
F F
G 24. D3 was recruited by D1 to wound and blackmail X. His role G
was to hold a folding knife to guard X as the other three manhandled X.
H H
He was as much culpable as the others in the physical acts.
I I
25. On Charge 1 (wounding with intent), I take a starting point of
J J
30 months. After the one-third discount for his plea of guilty, the sentence
K is 20 months. K
L L
26. On Charge 3 (blackmail), I take a starting point of 21 months.
M After the one-third discount for his plea of guilty, the sentence is 14 M
months.
N N
O 27. On Charge 4 (theft), I take a starting point of 9 months. After O
the one-third discount for his plea of guilty, the sentence is 6 months.
P P
Q Q
28. By totality, I make an order for 2 months each of Charges 3
R
and 4 to be consecutive to the 20 months on Charge 1. The total sentence R
is 24 months.
S S
T T
( E Yip )
U District Judge U
V V
A A
B B
DCCC 317/2022
[2023] HKDC 1413
C C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 317 OF 2022
F F
————————
G G
HKSAR
H v H
AU YEUNG KA WAI (D1)
I I
WONG WAI LUN (D3)
————————
J J
K Before: His Honour Judge E Yip K
Date: 5 October 2023
L L
Present: Mr Anson Lai, Public Prosecutor, for HKSAR
M Mr Jeffrey Sham C F, instructed by James W L Li & Co, M
assigned by the Director of Legal Aid, for the 1st Defendant
N N
Mr Jimmy Ma Y T, instructed by Jackson Ho & Co,
O assigned by the Director of Legal Aid, for the 3rd Defendant O
Offences: [1] Wounding with intent (有意圖而傷人)
P P
[3] Blackmail (勒索罪)
Q [4] Theft (盜竊罪) Q
R R
————————————————
S REASONS FOR SENTENCE S
————————————————
T T
U U
V V
-2-
A A
B B
Charges
C C
1. D1 and D3 plead guilty to the following charges:
D D
E (1) Wounding with intent, contrary to section 17(a) of the E
Offences against the Person Ordinance, Cap 212,
F F
against D1 and D3, together with two unknown
G persons; G
H H
(3) Blackmail, contrary to section 23(1) and (3) of the
I Theft Ordinance, Cap 210, against D1 and D3, together I
with two unknown persons;
J J
K (4) Theft, contrary to section 9 of the Theft Ordinance, K
Cap 210, against D1 and D3, together with two
L L
unknown persons.
M M
Facts
N N
O The events constituting Charge 1 (wounding with intent, against D1 and O
D3 and others)
P P
Q Q
2. In early July 2020, X came to know D2 via a dating
R
application. They had consensual sexual intercourse in July and August R
2020. After that they did not contact each other.
S S
T
3. On 21 July 2020, X asked D2 to meet up in a room at Kowloon T
Hotel. At around 1930 hours, when X and D2 were inside the room, D2
U U
V V
-3-
A A
B B
said that she wanted to order takeaway. She opened the door for D1, D3
C and two unknown males (“Male A” and “Male B”). D2 left the room. C
D D
4. After the four entered the room, D3 stood next to the door and
E while holding a folding knife of around 10 cm in length. Male A and Male E
B accused X of having an affair with D2. D1, Male A and Male B then
F F
assaulted X barehanded for about 10 minutes. During the assault, Male A
G searched X’s backpack and found X’s wallet while held the folding knife G
and looking at X without taking part in the assault.
H H
I The events constituting Charge 3 (blackmail, against D1 and D3 and I
others) and Charge 4 (against D1 and D3 and others)
J J
K 5. After the assault, D1 removed X’s shorts and took nude K
photos of X with a mobile phone. D1 demanded $50,000 as that X could
L L
leave. X replied that he did not have the money. D1 asked X to called X’s
M friends to pay but to no avail. Male A asked X to write a debt note for M
$50,000 containing X’s personal information and an admission of having
N N
an affair with X, another person’s wife. Male A and Male B assaulted X
O when X was writing the debt note. O
P P
6. Afterwards, D1 used X’s phone to call X’s friends but to no
Q
avail. D1 told X that he would cut X’s foreskin if X could not pay. At this Q
R
juncture, D3 was still holding the folding knife. X was afraid that D1 R
would publish X’s nude photos if X did not pay D1.
S S
T
7. At around 2130 hours, ie, 2 hours after their entry into the T
room, the four left the room. X checked his wallet and found the loss of
U U
V V
-4-
A A
B B
$2,000 cash, his HKID card and his Octopus card, which had its $200
C remaining value gone missing. C
D D
8. X attended the hospital and was diagnosed to have redness
E and bruising on his left lower eyelid, and laceration on the back of his scalp E
and left lower eyelid. Six stitches were applied to the laceration.
F F
G CCTV footage G
H H
9. The CCTV footage captured as follows:
I I
(1) D1 – D3 and 2 unknown males were inside a room at
J J
Imperial Hotel, later found to be rented by D1 before
K the incident; K
L L
(2) Afterwards, they went to Kowloon Hotel, D1, D3, Male
M A and Male B entered the room where X was; M
N N
(3) After the incident, they returned to Imperial Hotel, D3
O gave D1 some money in the elevator at Imperial Hotel; O
P P
(4) D1 and D3 entered the room there after the incident.
Q Q
R
Nude photos and nude video clip of X R
S S
10. Two nude photos and a 13-second nude video clip of X were
T
found in D1’s phone. T
U U
V V
-5-
A A
B B
What D1 and D3 told the police
C C
11. After arrest and caution by the police:
D D
E (1) D1 said he assaulted X because he got angry after E
discovering D2 had an affair with X;
F F
G (2) D3 said D1 asked him to assault X as X had an affair G
with D2.
H H
I 12. In the cautioned VRIs: I
J J
(1) D1 admitted taking 3 people to assault X in the room
K and taking X’s nude photos; K
L L
(2) D3 admitted meeting D1 and two unknown males in a
M room in another hotel where D1 told them D1 wanted M
to take revenge on X, who had sex with D2 before and
N N
asked D2 to have sex again. D2 went to the room to
O meet X first. A few minutes later, D1 knocked on the O
door and claimed that the takeaway had arrived. D2
P P
opened the door for D1 and him, together with the two
Q Q
unknown males to enter the room. Then D2 left. X was
R
nude on the bed. D1 accused X of having sex with D2 R
and assaulted X with the two unknown males. D1
S S
instructed him to stand next to the door and watch.
T
During the assault, D1 demanded $50,000 from X. X T
called his boss and colleagues for help to pay. They
U U
V V
-6-
A A
B B
threatened to cut off X’s foreskin if X could not pay.
C As X was unable to pay, he offered to write a debt note C
and pay by instalments. The two unknown males took
D D
nude photos of PW1 with a camera. He saw a folding
E knife of about 10 cm in length on a table in the toilet of E
the room. He held it during the assault as he was afraid
F F
that X would take it. After the assault, D1 gave him
G $200 inside the elevator of Imperial Hotel and told him G
to take it as a repayment. He met D1 the next day. D1
H H
told him that D1 had taken money from PW1.
I I
Mitigation
J J
K 13. D1 is 34 years of age. In 2021, he lost his job as a truck driver. K
He is married to D2. They have separated since end of 2020. They have a
L L
7-year-old son and a 5-year-old daughter.
M M
14. He has several criminal records involving assaults of various
N N
degrees and theft. The last of them was in 2016 for assaulting a police
O officer for which he was sentenced to 2 months’ imprisonment. It was O
already 4 years 10 months before the present offences. I do not consider
P P
his previous records a ground for aggravating his sentence here.
Q Q
R
15. D3 is 50 years of age. He has several criminal records R
involving violence and dishonesty. The last of them was in 2015 for
S S
assaulting occasioning actual bodily harm for which he was sentenced to
T
DATC. It was already 5 years 7 months before the present offences. I do T
U U
V V
-7-
A A
B B
not consider his previous records a ground for aggravating his sentence
C here. C
D D
16. He was asked by his friend D1 to assault X for having sex
E with D2. After the offences, he received $200 as D1’s repayment for his E
loan made to D1 beforehand.
F F
G Sentencing considerations G
H H
17. In HKSAR v Tung Pak Fai [2022] HKCA 1470, the Court of
I Appeal summarized the relevant factors when sentencing wounding with I
intent case:
J J
K “21. The relevant factors relevant to sentencing in wounding K
with intent cases were set out in HKSAR v Chan Chun Tat and
endorsed in HKSAR v Jatinder Singh. These include the extent
L to which the assault was premeditated, the reasons or motivation L
underlying the assault upon the victim, the mental or emotional
M state of the assailant at the time of the assault, whether alcohol M
or drugs contributed to the actions of the assailant, whether the
assault was committed by the assailant alone or as part of a
N group, the type of weapons employed, and the level of force or N
aggression and the persistence with which the assault was
O
pressed home, the injuries caused to the victim and the effect of O
the assault upon the victim and those close to him or her (at
paragraph 49, Chan Chun Tat). The list is not meant to be
P exhaustive but it purely demonstrates that the culpability of an P
offender of a wounding with intent charge will relate to the type
of harm intended to be inflicted, the means by which that harm
Q Q
was inflicted and the circumstances generally surrounding the
assault. Given the many imponderables as to why an assailant
R failed to achieve the injuries intended by him, the actual injuries R
caused is only one of the myriad of factors to be take into
account. The gravamen of the offence is in the intent to inflict
S really serious injuries, which is the same intent as that required S
for murder. The lack of serious injuries does not necessarily
T reduce the gravity of the offence or offset the other aggravating T
factors.”
U U
V V
-8-
A A
B B
18. In HKSAR v Ma Tik Lun Dicky, CACC 112/2013, the Court
C of Appeal summarized the aggravating factors for sentencing wounding C
with intent cases as follows:
D D
E
“41. … [T]he aggravating factors for this type of wounding E
case are: (1) the defendant was the principal offender; (2) the
assault was committed in company; (3) the assault was
F unprovoked; (4) the assault took place in a public place; (5) the F
assault went on after the victim had fallen down; (6) the assault
went on after the victim became unable to defend himself; (7)
G G
the victim suffered serious and lasting injuries; (8) at the police
interview, the defendant misled the police as to the facts,
H indicating a lack of remorse…” H
I Sentencing D1 and D3 I
J J
19. D1 was the instigator of all offences. He was motivated by
K jealousy, greed and anger. His plan was to wound and blackmail X to be K
reinforced by recruiting D3 and the two unknown males.
L L
M M
20. On Charge 1 (wounding with intent), I take a starting point of
N
36 months as it was committed with premeditation, with 4 people including N
himself, on and off for 2 hours from 1930 hours to 2130 hours, resulting in
O O
6 stitches to be applied to X’s wound at the hospital. After the one-third
P discount for his plea of guilty, the sentence is 24 months. P
Q Q
21. On Charge 3 (blackmail), X was subject to assault and
R humiliation of nude photo and video taking for ransom of $50,000 and the R
need to provide personal information on the debt note. I take a starting
S S
point of 24 months. After the one-third discount for his plea of guilty, the
T sentence is 16 months. T
U U
V V
-9-
A A
B B
22. On Charge 4 (theft), I take a starting point of 12 months. After
C the one-third discount for his plea of guilty, the sentence is 8 months. C
D D
23. By totality, I make an order for 2 months each of Charges 3
E and 4 to be consecutive to the 24 months on Charge 1. The total sentence E
is 28 months.
F F
G 24. D3 was recruited by D1 to wound and blackmail X. His role G
was to hold a folding knife to guard X as the other three manhandled X.
H H
He was as much culpable as the others in the physical acts.
I I
25. On Charge 1 (wounding with intent), I take a starting point of
J J
30 months. After the one-third discount for his plea of guilty, the sentence
K is 20 months. K
L L
26. On Charge 3 (blackmail), I take a starting point of 21 months.
M After the one-third discount for his plea of guilty, the sentence is 14 M
months.
N N
O 27. On Charge 4 (theft), I take a starting point of 9 months. After O
the one-third discount for his plea of guilty, the sentence is 6 months.
P P
Q Q
28. By totality, I make an order for 2 months each of Charges 3
R
and 4 to be consecutive to the 20 months on Charge 1. The total sentence R
is 24 months.
S S
T T
( E Yip )
U District Judge U
V V