DCCC311/2019 HKSAR v. HO TUNG SUM AND OTHERS - LawHero
DCCC311/2019
區域法院（刑事）His Honour Judge D Yau20/11/2019[2019] HKDC 1627
合併案件：DCCC311/2019DCCC167/2019
DCCC311/2019
A A
B B
DCCC 907/2018, 167/2019 & 311/2019 (Consolidated)
C [2019] HKDC 1627 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO. 907 OF 2018 & 167 & 311 OF 2019
F F
G ---------------------------------------- G
HKSAR
H H
v
I HO TUNG SUM (D1) I
CHEUNG CHUN HONG (D2)
J J
LEUNG SZE LONG (D3)
K ---------------------------------------- K
L L
Before: His Honour Judge D Yau
M Date: 21 November 2019 M
Present: Mr Matthew Hui, Public Prosecutor, for HKSAR/Director of
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Public Prosecutions
O Mr Ma Tsz On, Stephen, instructed by Ho & Associates, O
assigned by the Director of Legal Aid, for the 1st defendant
P P
Miss Lai Wing Ting, Kamina, instructed by Sam Fu & Co,
Q assigned by the Director of Legal Aid, for the 2nd defendant Q
Mr Cheung Man Fung, Chris, instructed by Cham & Co,
R R
rd
assigned by the Director of Legal Aid, for the 3 defendant
S Offences: [1] Wounding with intent（有意圖而傷人） S
T [2] & [3] Assault occasioning actual bodily harm（襲擊他人 T
致造成身體傷害）
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V V
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A A
B B
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C REASONS FOR SENTENCE C
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D D
E 1. The four defendants jointly face one charge of wounding with E
intent1 (Charge 1) and two charges of the common law offence of assault
F F
occasioning actual bodily harm2 (Charges 2 and 3).
G G
2. D1, D2 and D3 pleaded guilty to all three charges and are
H H
sentenced as below.
I I
SUMMARY OF FACTS
J J
K 3. The victims of the 3 respective charges, PW1, 2 and 3, were K
patrons at Lee Kwan Seafood Restaurant at Yau Oi Cooked Food Stalls in
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Tuen Mun in the early hours of 3 June 2018.
M M
4. At about 4:40 am, PW3 went to a nearby convenience store to
N N
get some cigarettes. A man and a woman happened to be outside the store
O and PW3 took a look at them before continuing back to the restaurant. O
P P
5. About 10 minutes later, the man entered the restaurant,
Q approached PW3’s table and taunted him by asking him what he was Q
looking at. An argument ensued. The man made a phone call and said to
R R
PW3 that he was going to bring people and told their group to stay there.
S S
T T
1
Contrary to s 17(a) of the Offence Against the Person Ordinance, Cap 212.
2
Punishable under s 39 of the above Ordinance.
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A A
B B
6. PW3 called the police at the same time.
C C
7. When the man began to walk away, PW1 stood up and argued
D D
with him. The man then left the restaurant. The female friend who was
E dining with PW1, 2 and 3 also left the restaurant immediately. E
F F
8. Another 10 minutes later, the man led a group of about 7 to 8
G males, some of them wearing masks, into the restaurant started to attack G
the three victims with random items, including a mop, plastic chairs, beer
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bottles, teacups and eating utensils.
I I
9. The victims fought back, which also involved the use of eating
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utensils. The attack stopped after about 2 minutes. When attackers were
K leaving the restaurant, the victims chased after them and continued to argue K
with them.
L L
M 10. One of the attackers threw a metal trolley found in the M
restaurant at the victims. The group then left.
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O 11. CCTV captured parts of the attack. CCTV footages from O
nearby residential estates led to the location of D1 and D2 and they were
P P
arrested in Tuen Mun on the same day at about 5:35p m. D3 was arrested
Q about 6 months later on 22 December 2018 while D4 was arrested about 8 Q
months later on 21 February 2019.
R R
S 12. In subsequently held identification parades, all four S
defendants were identified by the victims as among the attackers that night.
T T
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A A
B B
INJURIES SUFFERED BY VICTIMS
C C
13. As a result of the attack, the victims suffered the following
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injuries:
E E
14. Victim of charge 1 PW1 Mr Lau suffered two deep laceration
F F
wounds on his scalp; depressed skull fracture in the top of the head with
G small amount of acute subarachnoid haemorrhage on the left side of the G
head; left craniectomy3 for debridement of compound skull fracture was
H H
performed on the same day. He was discharged from hospital 8 days later
I on 11 June 2018. I
J J
15. In the later victim impact report of Mr Lau dated 5 November
K 2019, Dr Tang briefly recounted the procedure that Mr Lau had gone K
through and remarked that Mr Lau still complained of occasional headache
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and deficit in short term memory. There does not appear to be any
M permanent injuries or damage otherwise. M
N N
16. Victim of charge 2 PW2 Mr Yeung suffered abrasion wounds
O to his right elbow, right index finger, left thumb and right heel. There was O
also tenderness at his lower back and right elbow. He was discharged from
P P
hospital on the same day.
Q Q
17. Victim of charge 3 PW3 Mr. Lui suffered a 1.5cm superficial
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laceration over his front scalp and minor abrasions on both wrists. He was
S also discharged on the same day. S
T T
3
Procedure where part of the skull is removed to allow a swelling brain to expand without being
compressed.
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A A
B B
C PREVIOUS CONVICTIONS C
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D1
E E
18. D1 is of previously clear record.
F F
G D2 G
H H
19. D2 has one previous conviction dated 5 September 2016,
I when he was 17 years old, for the offence of Robbery and was sentenced I
in the District Court to detention in a rehabilitation centre. He was last
J J
released from detention on 28 April 2017, which is about 14 months before
K he committed the offences in the present case. K
L L
20. D2 is also the subject of an ongoing investigation involving
M the offence of acting as a member of a triad society. He committed the M
present offences whilst on police bail for that case.
N N
O D3 O
P P
21. D3 has 9 previous convictions from 7 court appearances. 5 of
Q those are related to violence. Q
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22. D3 was first convicted of theft and criminal intimidation in
S March 2012 when he was 12 and a half years old. He was sentenced to 12 S
months’ probation.
T T
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A A
B B
23. 3 months after the said convictions, the defendant was
C convicted of assault occasioning actual bodily harm in June 2012, and his C
probation period was extended to 33 months.
D D
E 24. Slightly less than 2 years later in March 2014, when he was E
14 and a half years old, the defendant was again convicted of assault
F F
occasioning actual bodily harm and was sentenced to detention in a
G detention centre. The Probation Order was ordered to be discharged. G
H H
25. On 12 May 2015, the then 15 years and 8 months old
I defendant was convicted of trafficking in dangerous drugs and was I
sentenced to detention at a training centre. He was sentenced 13 days later
J J
for assault occasioning actual bodily harm and claiming to be a member of
K a triad society to concurrent sentences of detention in a training centre. K
L L
26. On 24 December 2018, when the defendant was 19 years old,
M he was convicted of resisting a police officer and sentenced to 4 weeks’ M
imprisonment. He was also fined on the same occasion for failing to
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produce proof of identity on demand.
O O
MITIGATION
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Q D1 Q
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27. D1 is 22, single, educated up to Form Four level in Hong
S Kong. He lives with his parents and brother in a public housing unit in S
Tuen Mun.
T T
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A A
B B
28. The defendant worked as a warehouse worker after leaving
C school, earning $18,000 per month. His father is a ship repair worker while C
his mother works as a cashier. The defendant’s younger brother is working,
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but the defendant does not know the nature of his work.
E E
29. The defendant’s social worker informed the court that the
F F
defendant came across as someone willing to take responsibility for what
G he has done. The defendant is also a filial son who cares about his family G
and younger brother, frequently asking about his brother during their
H H
interviews and worrying about him affecting his brother’s work and life.
I The defendant was also concerned how the family was getting on without I
his financial contribution.
J J
K 30. When asked about the defendant’s future plan, his first K
reaction was to go on a proper trip with his family, so that they can spend
L L
some quality time together, showing how much the defendant cherishes his
M family. Mr Ma suggests that the defendant found being away from his M
family particularly punishing.
N N
O 31. The defendant is also someone always prepared to help out O
his friends. A drawing he made for the social worker shows the
P P
defendant’s talent.
Q Q
32. In mitigation, Mr Stephen Ma told the court that on the night
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of the incident, the defendant was drinking and entertaining with his friends.
S D1 has known the other defendants for a long time, but he did not know S
the man who first had the argument with PW3.
T T
U U
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A A
B B
33. What happened was that, while D1 was with his friends and
C some other unknown people drinking and entertaining, one of them C
received a phone call from the man. D1 heard that the man’s girlfriend was
D D
being bullied and might be attacked. Since they were all at a bar nearby,
E the person receiving the phone call told D1 and the others to follow him to E
go to the man.
F F
G 34. By that time, D1 had had a lot to drink and was quite drunk. G
Under the influence of the other defendants and alcohol, D1 decided to go
H H
along, not knowing that there will be a fight. D1 was following the others
I and was walking near the rear of the group. I
J J
35. When they were at the restaurant, D1 heard people in front
K talked a few sentences and then they began to attack each other. Seeing K
that, D1 also took part by picking up some eating utensils and throwing
L L
them towards the other side, just like what everyone else was doing. He
M did not have any actual bodily contact with others. M
N N
36. After the fighting had lasted for a while, D1 got scared and
O asked the other defendants to leave together. In the end, he did leave the O
scene with D2.
P P
Q 37. The picture that Mr Ma attempts to paint is that D1 is just an Q
idiotic youngster with a previously good character who got caught in the
R R
moment and deserves to be given a chance.
S S
D2
T T
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A A
B B
38. D2 is 20 years and 4 months old. Born in Hong Kong and
C single. He lives with his parents and elder sister. C
D D
39. The defendant left school without completing Form 4. He
E worked in a logistic company and then became a kitchen apprentice at E
different restaurants earning about $14,000 per month. The defendant
F F
would contribute $5,000 towards his parents’ living expenses.
G G
40. On the night of the offences, the defendant was drinking with
H H
his friends when one of them received a phone call from someone, telling
I them that D4 was being attacked. D2 had no knowledge about the attack I
and just followed everyone to see what was going on.
J J
K 41. When they arrived, things became chaotic and both sides were K
fighting. Although D2 did take part, he also tried to steady one of his
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friends’ emotions and pulled him aside.
M M
42. The fighting stopped after a short time and the defendant’s
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group started to leave, but then the victims’ group gave chase and fighting
O resumed. The defendant understands that what he did was wrong and that O
one of the victims suffered serious injuries.
P P
Q 43. The defendant fully accepts that he will be facing a term of Q
imprisonment. During his present remand, he had had time to reflect and
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realized that his parents love him dearly. The defendant took part in
S religious activities and is learning to adopt the right attitude in life. S
T T
U U
V V
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A A
B B
44. Ms Lai referred to the case of HKSAR v Hung Gar Chun (熊
C 家駿), CAAR 9/2010 where the respondent was sentenced to 9 months’ C
imprisonment after trial for using a fruit knife he bought, after being
D D
displeased with the victim’s attitude of not allowing the defendant to see
E his younger sister, to stab the victim once. The victim suffered a deep E
laceration with massive internal bleeding. The victim’s spleen had to be
F F
removed, permanently affecting his immune system, rendering him
G constantly fatigued. G
H H
45. The Court of Appeal found the use of a lethal weapon, some
I I
degree of premeditation, serious harm suffered by the victim and the
J
severity of the offence warranted a heavier sentence. Having J
acknowledged that the sentences for the offence of ‘wounding with intent’
K K
should be within the range of 3 to 12 years 4 , the court found that the
L
appropriate sentence should be 30 months’ imprisonment, given it was a L
case of the prosecution reviewing the sentence of the trial judge.
M M
N D3 N
O O
46. D3 is 20 years old, educated up to Form One level. He was
P working as a hair stylist apprentice at the time of the offences. He is single P
and lives with his father, stepmother and elder brother.
Q Q
R 47. Mr Cheung told the court that on the day of the incident, D3 R
was drinking with his friends on his day off. D3 was already inebriated
S S
when one of his friends received a phone call from someone, telling him
T T
4
The Court cited the case of HKSAR v Yuen Wai Kui, CACC 280/2004.
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A A
B B
that another friend had been injured in a fight. They therefore went to see
C what was going on and in the process a fight ensued. D3 joined the fight C
and committed the present offences out of impulse.
D D
E 48. D3 was 18 years old at the time. He indicated his pleas of E
guilty early on. He had written a letter in mitigation telling the court that
F F
in the 9 odd months that he has been incarcerated, he had reflected on his
G life and realized that he wanted to improve himself, but because of his G
education background, he would not be able to meet the minimum
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qualification requirement for most vocational training courses.
I Nevertheless, the defendant is remorseful and promises to turn a new leaf I
upon release.
J J
K 49. Mr Cheung referred to 3 cases to assist the court in sentencing: K
HKSAR v Lam Wai Tak ( 林 惠 德 ) and two others, CACC 248/2003;
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HKSAR v Tam Gar Kit (譚家傑 ), CACC 191/2015; and HKSAR v Lee
M M
Ming Tung and three others, DCCC 381/2017.
N N
50. Lam Wai Tak was a trial heard in the Court of First Instance.
O O
The facts are entirely different and the Court of Appeal specifically stated
P that the sentences they adopted were unique to the circumstances. As such, P
it is not helpful to sentencing D3 in the present case.
Q Q
R 51. In Tam Gar Kit, the appellant was convicted after trial of one R
charge of wounding with intent and one charge of assault occasioning
S S
actual bodily harm. There the appellant was 20 years old at the time of the
T commission of the offences. T
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A A
B B
52. The facts of that case are that, the appellant’s friend had an
C argument with the two victims and was beaten up a few days before the C
attack. The appellant gathered a group of people to avenge his friend by
D D
attacking the two victims. They went together to the scene of the attack
E and no less than 6 people attacked the victims with wooden sticks. One of E
the victims had to receive craniectomy and was hospitalized for 10 days.
F F
The other suffered bone fractures in his palm and was hospitalized for 4
G days. There was no permanent damage. G
H H
53. The original sentence of 57 and 24 months’ imprisonment,
I with a final total sentence of 5 years and 3 months, was found to have been I
imposed upon the trial judge wrongly taking into consideration that
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provocation was an aggravating factor and that the attack had triad
K connotation. Sentences of 4 years and 18 months were substituted for the K
two charges, with a final sentence of 4 and a half years upon part of the
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sentence in the second charge being made concurrent.
M M
54. In Lee Ming Tung, the four defendants, together with around
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6 others, attacked the victims. One of the defendants used a metal pipe to
O hit the head of one of the victims, while the others punched and kicked O
them.
P P
Q 55. The assaults caused the victim of the wounding with intent Q
charge to lose consciousness. The attackers then took away the shorts (with
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his wallet inside) and underpants the victim was wearing, leaving him lying
S half naked in the park and then fled. S
T T
U U
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A A
B B
56. The victim suffered multiple abrasions, bruises on his face,
C palms, abdomen and left leg. He was hospitalized for 12 days. An MRI C
was conducted and it was confirmed that he had suffered subarachnoid
D D
haemorrhage and diffuse axonal injury to the cerebellum (a form of brain
E injury following head trauma). E
F F
57. My learned brother referred to the cases of Lam Wai Tak and
G Tam Gar Kit above and pointed out that the starting points there for the G
wounding with intent charge were both 4 years’ imprisonment.
H H
I 58. He then took into consideration the young age of the I
defendants, being 16 to 18 years old, and 15 to 17 at the time of the offence,
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with either a clear or very light criminal conviction record, their early
K indication of plea and decided to deal with them as leniently as the law K
would allow.
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M 59. There first defendant there, with one record for robbery and M
the one who used the iron pipe to attack the victim’s head, was sentenced
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to 28 months’ imprisonment after adopting a starting point of 3 and a half
O years’ imprisonment. O
P P
60. For the second defendant there, whom the judge found to be
Q of lesser culpability and with a clear record, a starting point of 3 years 3 Q
months’ imprisonment was adopted. A discount was granted on the basis
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of assistance given to the authorities, leading to a final sentence of 21
S months’ imprisonment. S
T T
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A A
B B
61. For the third and fourth defendant there, both with just one
C previous conviction where they were sentenced to probation, the judge C
adopted a starting point of 3 years and 3 months’ imprisonment, resulting
D D
in a sentence of 26 months’ imprisonment after plea.
E E
62. In our present case, a training centre report was ordered to be
F F
prepared on D3. It is, however, D3’s wish to be dealt with by way of
G imprisonment rather than detention in a training centre. G
H H
SENTENCE
I I
63. The maximum sentence on conviction upon indictment for the
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offence of wounding with intent is that of life imprisonment.
K K
64. The maximum sentence under s 39 of the Offences Against
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the Person Ordinance is that of 3 years’ imprisonment.
M M
REPORTS
N N
O 65. Given the age of the defendants and the circumstances of their O
commission of the present offences, despite the wounding with intent
P P
5
charge being an excepted offence and hence s 109A of the Criminal
Q Procedure Ordinance, Cap 221 does not apply and imprisonment does not Q
have to be the last sentencing option, I ordered reports be prepared on each
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of them to assist in sentencing.
S S
D1’S BACKGROUND REPORT
T T
5
See Schedule 3 of the Criminal Procedure Ordinance, Cap 221.
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B B
C 66. D1 was already 22 years and 4 months old at the time of C
6
conviction, he is not eligible for detention in a training centre . Given that
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these are his first convictions and given the circumstances of the
E commission of the offences, I find it prudent to call for a background report E
before sentencing D1.
F F
G 67. According to the report, D1 was brought up in a working class G
family with inadequate and ineffective parental supervision. His parents
H H
had to work and so he was left with his grandparents. D1 got acquainted
I to some dubious peers in his secondary school days and turned wayward I
under their influence, leading a loose life with no stable employment upon
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quitting school after completing Form 4.
K K
68. D1 told the probation officer that he committed the present
L L
offences under the influence of alcohol, but he is willing to bear the
M consequences. M
N N
69. D1’s parents, especially his mother, are committed to the
O defendant and have been supporting and encouraging him during his O
present remand.
P P
Q D2’S TRAINING CENTRE REPORT Q
R R
70. D2 was 20 years and 4 months old at the time of conviction
S and would still be eligible for detention in a training centre. S
T T
6
See s 4 of the Training Centres Ordinance, Cap 280.
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A A
B B
71. According to D2’s training centre report, he was brought up
C in a working class family with insufficient parental guidance and C
supervision. The defendant’s conduct at school took a down turn after his
D D
mother started to work in 2012. He got to mingling with some triad
E affiliated peers and became a member in mid-2014. His lack of interest in E
school and poor conduct led to him quitting school after completing Form
F F
3 in 2015. The defendant kept company with his dubious peers and led an
G idle life thereafter. G
H H
72. D2 then committed the various offences that he had been
I sentenced for. He was able to comply with the rules and made fair progress I
while being detained in a rehabilitation centre, and was able to work as a
J J
kitchen helper after receiving relevant training in 2017.
K K
73. He managed to finish his rehabilitation and went through the
L L
statutory one-year supervision period without incident. Unfortunately,
M upon the expiration of his supervision period in April 2018, D2 soon re- M
associated with his former triad peers, eventually leading to the
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commission of the present offences in June 2018.
O O
74. It is Officer Lo’s finding that D2 is mentally and physically
P P
fit for detention in a training centre, and he considers him suitable to be so
Q detained. Q
R R
D3’S TRAINING CENTRE REPORT
S S
75. D3 was 20 years old at the time of conviction. He had been
T T
sentenced to a term of imprisonment of 4 weeks in 2018. That was the
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A A
B B
only occasion when he was imprisoned. There was a 3 year period between
C his last detention in a training centre in 2015 and commission of that latest C
offence in 2018. It would appear that the detention might have helped D3
D D
and I wanted to find out what the relevant officers’ opinions are. A training
E centre report was ordered. E
F F
76. According to the report, D3’s mother left the family when the
G defendant was 2 years old. The defendant’s father was busily engaged in G
his work and the defendant was looked after by his paternal grandparents.
H H
I 77. Supervision was lacking and the defendant mingled with I
some dubious peers and became rebellious. He did not disclose his
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association outside, nor his personal feelings to his family and they keep a
K distant relationship. K
L L
78. The defendant was not fond of studying and did not do too
M well in school. He was left unattended most of the time and he began M
loitering in public parks and playgrounds in Tuen Mun after school.
N N
O 79. The defendant began using ketamine in June 2011 under the O
influence of one of his peers. He continued to use it occasionally until he
P P
was given a Superintendent’s Caution for smoking a dangerous drug.
Q Q
80. The defendant’s school performance further deteriorated after
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his promotion to Form One. He spent most of this time after school with
S his peers and maintained a carefree attitude, eventually leading to his first S
criminal convictions in 2012 when he was 12 and a half years old. The
T T
defendant was put on probation and was ordered to stay at a juvenile home.
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A A
B B
C 81. In March 2013, the defendant had to repeat form one. He C
continued to pay no attention to his studies while engaging in nocturnal
D D
activities with his peers. His probation order was extended as a result of
E another offence and he was ordered to study in a boarding school in E
September 2013. The defendant failed to attend school from late October
F F
2013 onwards and indulged in nocturnal activities. He was arrested for
G another violence related offence in December 2013. He was ordered to be G
detained in a detention centre in March 2014.
H H
I 82. Upon his release, and during the supervision period, the I
defendant was arrested for assault and claiming to be a member of a triad
J J
society in December 2014. He further committed the trafficking in
K dangerous drugs offence and subsequently other offences and was K
sentenced to be detained in a training centre in May 2015.
L L
M 83. D3’s performance in the training centre was fair and he was M
released on 27 September 2016. During the statutory 3-year supervision
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period, he worked as a kitchen assistant, waiter, salon apprentice and
O assistant at a barbeque site. He was, however, unable to remain in the same O
job for long.
P P
Q 84. Meanwhile, D3 re-associated with his dubious peers and soon Q
relapsed into using ketamine in late 2017. Under their adverse influence,
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the defendant committed the present offences in June 2018 and was put on
S the wanted list. S
T T
U U
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A A
B B
85. As a result of D3’s poor supervision performance, a recall
C order was issued in July 2018. During the period when D3 had absconded, C
he had quit his job at the barbeque site and became engaged to drug
D D
trafficking in July 2018.
E E
86. In December 2018, he was arrested for resisting a police
F F
officer and failing to produce proof of identity on demand and sentenced
G to 4 weeks’ imprisonment and fined. He was recalled by the training centre G
upon his release from jail. He had completed his recall treatment on 24
H H
May 2019 and was then remanded in Pik Uk Correctional Institution to
I await disposal for the present offences. I
J J
87. It is Officer Kwong’s finding that D3 is mentally and
K physically fit for detention in a training centre, and that from the K
information available and after a general assessment of his behavior and
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attitude while on remand, he is suitable to be so detained.
M M
SENTENCES
N N
O D1 O
P P
Charge 1: wounding with intent
Q Q
88. Given the seriousness of the injuries suffered by the victim,
R R
given the fact that the offence was committed by the defendant together
S with about 5 to 6 others, despite there being no use of lethal weapons such S
as knives, and despite his age and clear record, I find that a term of
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imprisonment is the only appropriate sentence for D1 in the circumstances.
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V V
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A A
B B
C 89. Bearing in mind the usual sentence of 3 to 12 years C
imprisonment for the offence, the sentences passed in the above referred to
D D
cases, and taking into consideration all the circumstances of the present
E case, including the fact that none of the victims suffered any permanent E
injuries, and in particular his previously clear record, I adopt a starting
F F
point of 3 years’ imprisonment. D1 is granted the full one-third discount
G for his guilty plea, and sentenced to 2 years’ imprisonment. G
H H
Charges 2 and 3: AOABH
I I
90. As for charges 2 and 3, I adopt a starting point of 12 months’
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imprisonment, leading to a sentence of 8 months’ imprisonment after plea.
K K
TOTALITY
L L
M 91. Given the circumstances of the commission of the offences, I M
find that the sentences in charges 2 and 3 should be served wholly
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concurrently to the sentence in charge 1.
O O
92. The final total sentence for D1 is, therefore, 24 months’
P P
imprisonment. I would just add that, having had the opportunity to hear
Q from D1 directly, I am convinced that he is genuinely remorseful and has Q
shown determination in picking himself up after this ordeal and trying his
R R
best to better himself.
S S
D2
T T
U U
V V
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A A
B B
Charges 1, 2 and 3
C C
93. In relation to D2, it would appear that he is someone who
D D
might benefit from stringent supervision while he learns to be responsible
E for his behavior and try to develop into an adult. The previous stint of E
detention in the rehabilitation centre appeared to have achieved some short
F F
term positive result. He was able to comply with the rules and managed to
G be trained enough to be arranged to work in a restaurant. G
H H
94. Ms Lai for D2 drew my attention to the Magistracy Appeal
I case of R v Choi Chi Ming, HCMA 1034/1991, and submitted that despite I
the training centre report recommending detention, it is ultimately for the
J J
sentencing judge to decide on the appropriate sentence.
K K
95. She further pointed out that given the fact that the defendant
L L
has already been in custody for some 18 months, and since the usual period
M of detention in a training centre is typically 18 months to 3 years, the total M
period of detention of 36 months would have far exceeded the term of
N N
imprisonment in case involving circumstances like the present one, with a
O notional starting point of 54 months’ imprisonment. O
P P
96. I find that this is indeed an important factor to consider and it
Q is to be the sole basis of my choosing to impose a prison sentence and not Q
a training centre order on the defendant.
R R
S 97. Furthermore, having had the opportunity to talk with D2 S
directly in court, I am convinced that he is truly remorseful for his misdeeds
T T
and that he is determined to turn a new leaf after the present remand.
U U
V V
- 22 -
A A
B B
C 98. Therefore, taking into consideration the fact that D2 has been C
in custody for almost 18 months, and having had the benefit of the detailed
D D
training centre report prepared by Officer Lo, I am satisfied that the most
E appropriate sentence to deal with D2 is by way of an immediate custodial E
sentence instead of detention in a training centre.
F F
G D2: Charge 1 G
H H
99. Given the seriousness of the injuries suffered by the victim,
I given the fact that the offence was committed by the defendant together I
with about 5 to 6 others, despite there being no use of lethal weapons such
J J
as knives, and bearing in mind the usual sentence of 3 to 12 years
K imprisonment for the offence, the sentences passed in the above referred to K
cases, and taking into consideration all the circumstances of the present
L L
case, including the fact that none of the victims suffered any permanent
M injuries, I adopt a starting point of 3 years and 3 months’ imprisonment in M
relation to D2. The higher starting point is a reflection of this not being
N N
D2’s first conviction involving violence.
O O
100. As mentioned above, D2 committed the present offences
P P
whilst on police bail pending investigation for another unrelated case. For
Q this aggravating factor, I will enhance his sentence by 3 months, leading to Q
a sentence of 3 and half years’ imprisonment. The defendant is granted the
R R
full one-third discount for his guilty plea, resulting in a sentence of 28
S months’ imprisonment after plea for charge 1. S
T T
D2: Charges 2 and 3
U U
V V
- 23 -
A A
B B
C 101. As for charges 2 and 3, I adopt a starting point of 12 months’ C
imprisonment each, discounting them to 8 months’ imprisonment upon
D D
D2’s guilty pleas. I order that these sentences be served wholly
E concurrently to D2’s sentence in charge 1. E
F F
102. D2 is, therefore, sentenced to a total of 28 months’
G imprisonment for all 3 charges after plea. G
H H
D3
I I
Training Centre or not
J J
K 103. Similar to D2, I have given much thought to whether I should K
impose a training centre detention order on D3.
L L
M 104. The defendant left school early and, as he recognized in his M
letter, he would not be able to enroll into courses because of the lack of
N N
qualification. Detention in a training centre might allow the defendant to
O continue to try to develop a skill set in a particular trade and hopefully will O
allow him to be able to obtain gainful employment eventually.
P P
Q 105. If the defendant is sentenced to a term of imprisonment, he Q
will serve his sentence and upon rejoining society, he may find himself in
R R
the same position as he had been in before, with no skills and no
S qualification. Given his history, it is not difficult to picture him being S
driven back to his old way of life and this may not be the last time that he
T T
loses his freedom.
U U
V V
- 24 -
A A
B B
C 106. Be that as it may, and for the same reasons given above, I find C
the fact that D3 has been in custody for some 11 months an important factor
D D
to consider, and I do choose to impose a prison sentence instead of a
E training centre order to ensure that D3 is fairly sentenced. E
F F
107. Just as with D2, having had the benefit of hearing from D3
G directly in court, I am convinced that his remorse is genuine. D3 seemed G
open to the court’s suggestion that he should try to find some kitchen work
H H
first upon release, and then when he is more settled, he can proceed to look
I for other job opportunities, in particular work that relate to motor vehicle I
maintenance, which is something he enjoys doing.
J J
K D3: Charge 1 K
L L
108. Based on the same reasons given in relation to D2’s sentence
M on charge 1, I adopt a starting point of 3 years and 3 months’ imprisonment M
in relation to D3. Again, the slightly higher starting point being a reflection
N N
of this not being D3’s first offence involving violence.
O O
109. D3’s sentence on charge 1 is 26 months’ imprisonment after
P P
plea.
Q Q
D3: Charges 2 and 3
R R
S 110. I adopt the same 12 months starting point for charges 2 and 3, S
granting D3 the full one-third discount for his guilty pleas, and order the
T T
U U
V V
- 25 -
A A
B B
two 8 month sentences to be served wholly concurrently with the sentence
C in charge 1. C
D D
111. D3 is, therefore, sentenced to a total of 26 months’
E imprisonment for the 3 charges. E
F F
G G
( Douglas TH Yau )
H District Judge 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
V V
A A
B B
DCCC 907/2018, 167/2019 & 311/2019 (Consolidated)
C [2019] HKDC 1627 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO. 907 OF 2018 & 167 & 311 OF 2019
F F
G ---------------------------------------- G
HKSAR
H H
v
I HO TUNG SUM (D1) I
CHEUNG CHUN HONG (D2)
J J
LEUNG SZE LONG (D3)
K ---------------------------------------- K
L L
Before: His Honour Judge D Yau
M Date: 21 November 2019 M
Present: Mr Matthew Hui, Public Prosecutor, for HKSAR/Director of
N N
Public Prosecutions
O Mr Ma Tsz On, Stephen, instructed by Ho & Associates, O
assigned by the Director of Legal Aid, for the 1st defendant
P P
Miss Lai Wing Ting, Kamina, instructed by Sam Fu & Co,
Q assigned by the Director of Legal Aid, for the 2nd defendant Q
Mr Cheung Man Fung, Chris, instructed by Cham & Co,
R R
rd
assigned by the Director of Legal Aid, for the 3 defendant
S Offences: [1] Wounding with intent（有意圖而傷人） S
T [2] & [3] Assault occasioning actual bodily harm（襲擊他人 T
致造成身體傷害）
U U
V V
-2-
A A
B B
--------------------------------------
C REASONS FOR SENTENCE C
--------------------------------------
D D
E 1. The four defendants jointly face one charge of wounding with E
intent1 (Charge 1) and two charges of the common law offence of assault
F F
occasioning actual bodily harm2 (Charges 2 and 3).
G G
2. D1, D2 and D3 pleaded guilty to all three charges and are
H H
sentenced as below.
I I
SUMMARY OF FACTS
J J
K 3. The victims of the 3 respective charges, PW1, 2 and 3, were K
patrons at Lee Kwan Seafood Restaurant at Yau Oi Cooked Food Stalls in
L L
Tuen Mun in the early hours of 3 June 2018.
M M
4. At about 4:40 am, PW3 went to a nearby convenience store to
N N
get some cigarettes. A man and a woman happened to be outside the store
O and PW3 took a look at them before continuing back to the restaurant. O
P P
5. About 10 minutes later, the man entered the restaurant,
Q approached PW3’s table and taunted him by asking him what he was Q
looking at. An argument ensued. The man made a phone call and said to
R R
PW3 that he was going to bring people and told their group to stay there.
S S
T T
1
Contrary to s 17(a) of the Offence Against the Person Ordinance, Cap 212.
2
Punishable under s 39 of the above Ordinance.
U U
V V
-3-
A A
B B
6. PW3 called the police at the same time.
C C
7. When the man began to walk away, PW1 stood up and argued
D D
with him. The man then left the restaurant. The female friend who was
E dining with PW1, 2 and 3 also left the restaurant immediately. E
F F
8. Another 10 minutes later, the man led a group of about 7 to 8
G males, some of them wearing masks, into the restaurant started to attack G
the three victims with random items, including a mop, plastic chairs, beer
H H
bottles, teacups and eating utensils.
I I
9. The victims fought back, which also involved the use of eating
J J
utensils. The attack stopped after about 2 minutes. When attackers were
K leaving the restaurant, the victims chased after them and continued to argue K
with them.
L L
M 10. One of the attackers threw a metal trolley found in the M
restaurant at the victims. The group then left.
N N
O 11. CCTV captured parts of the attack. CCTV footages from O
nearby residential estates led to the location of D1 and D2 and they were
P P
arrested in Tuen Mun on the same day at about 5:35p m. D3 was arrested
Q about 6 months later on 22 December 2018 while D4 was arrested about 8 Q
months later on 21 February 2019.
R R
S 12. In subsequently held identification parades, all four S
defendants were identified by the victims as among the attackers that night.
T T
U U
V V
-4-
A A
B B
INJURIES SUFFERED BY VICTIMS
C C
13. As a result of the attack, the victims suffered the following
D D
injuries:
E E
14. Victim of charge 1 PW1 Mr Lau suffered two deep laceration
F F
wounds on his scalp; depressed skull fracture in the top of the head with
G small amount of acute subarachnoid haemorrhage on the left side of the G
head; left craniectomy3 for debridement of compound skull fracture was
H H
performed on the same day. He was discharged from hospital 8 days later
I on 11 June 2018. I
J J
15. In the later victim impact report of Mr Lau dated 5 November
K 2019, Dr Tang briefly recounted the procedure that Mr Lau had gone K
through and remarked that Mr Lau still complained of occasional headache
L L
and deficit in short term memory. There does not appear to be any
M permanent injuries or damage otherwise. M
N N
16. Victim of charge 2 PW2 Mr Yeung suffered abrasion wounds
O to his right elbow, right index finger, left thumb and right heel. There was O
also tenderness at his lower back and right elbow. He was discharged from
P P
hospital on the same day.
Q Q
17. Victim of charge 3 PW3 Mr. Lui suffered a 1.5cm superficial
R R
laceration over his front scalp and minor abrasions on both wrists. He was
S also discharged on the same day. S
T T
3
Procedure where part of the skull is removed to allow a swelling brain to expand without being
compressed.
U U
V V
-5-
A A
B B
C PREVIOUS CONVICTIONS C
D D
D1
E E
18. D1 is of previously clear record.
F F
G D2 G
H H
19. D2 has one previous conviction dated 5 September 2016,
I when he was 17 years old, for the offence of Robbery and was sentenced I
in the District Court to detention in a rehabilitation centre. He was last
J J
released from detention on 28 April 2017, which is about 14 months before
K he committed the offences in the present case. K
L L
20. D2 is also the subject of an ongoing investigation involving
M the offence of acting as a member of a triad society. He committed the M
present offences whilst on police bail for that case.
N N
O D3 O
P P
21. D3 has 9 previous convictions from 7 court appearances. 5 of
Q those are related to violence. Q
R R
22. D3 was first convicted of theft and criminal intimidation in
S March 2012 when he was 12 and a half years old. He was sentenced to 12 S
months’ probation.
T T
U U
V V
-6-
A A
B B
23. 3 months after the said convictions, the defendant was
C convicted of assault occasioning actual bodily harm in June 2012, and his C
probation period was extended to 33 months.
D D
E 24. Slightly less than 2 years later in March 2014, when he was E
14 and a half years old, the defendant was again convicted of assault
F F
occasioning actual bodily harm and was sentenced to detention in a
G detention centre. The Probation Order was ordered to be discharged. G
H H
25. On 12 May 2015, the then 15 years and 8 months old
I defendant was convicted of trafficking in dangerous drugs and was I
sentenced to detention at a training centre. He was sentenced 13 days later
J J
for assault occasioning actual bodily harm and claiming to be a member of
K a triad society to concurrent sentences of detention in a training centre. K
L L
26. On 24 December 2018, when the defendant was 19 years old,
M he was convicted of resisting a police officer and sentenced to 4 weeks’ M
imprisonment. He was also fined on the same occasion for failing to
N N
produce proof of identity on demand.
O O
MITIGATION
P P
Q D1 Q
R R
27. D1 is 22, single, educated up to Form Four level in Hong
S Kong. He lives with his parents and brother in a public housing unit in S
Tuen Mun.
T T
U U
V V
-7-
A A
B B
28. The defendant worked as a warehouse worker after leaving
C school, earning $18,000 per month. His father is a ship repair worker while C
his mother works as a cashier. The defendant’s younger brother is working,
D D
but the defendant does not know the nature of his work.
E E
29. The defendant’s social worker informed the court that the
F F
defendant came across as someone willing to take responsibility for what
G he has done. The defendant is also a filial son who cares about his family G
and younger brother, frequently asking about his brother during their
H H
interviews and worrying about him affecting his brother’s work and life.
I The defendant was also concerned how the family was getting on without I
his financial contribution.
J J
K 30. When asked about the defendant’s future plan, his first K
reaction was to go on a proper trip with his family, so that they can spend
L L
some quality time together, showing how much the defendant cherishes his
M family. Mr Ma suggests that the defendant found being away from his M
family particularly punishing.
N N
O 31. The defendant is also someone always prepared to help out O
his friends. A drawing he made for the social worker shows the
P P
defendant’s talent.
Q Q
32. In mitigation, Mr Stephen Ma told the court that on the night
R R
of the incident, the defendant was drinking and entertaining with his friends.
S D1 has known the other defendants for a long time, but he did not know S
the man who first had the argument with PW3.
T T
U U
V V
-8-
A A
B B
33. What happened was that, while D1 was with his friends and
C some other unknown people drinking and entertaining, one of them C
received a phone call from the man. D1 heard that the man’s girlfriend was
D D
being bullied and might be attacked. Since they were all at a bar nearby,
E the person receiving the phone call told D1 and the others to follow him to E
go to the man.
F F
G 34. By that time, D1 had had a lot to drink and was quite drunk. G
Under the influence of the other defendants and alcohol, D1 decided to go
H H
along, not knowing that there will be a fight. D1 was following the others
I and was walking near the rear of the group. I
J J
35. When they were at the restaurant, D1 heard people in front
K talked a few sentences and then they began to attack each other. Seeing K
that, D1 also took part by picking up some eating utensils and throwing
L L
them towards the other side, just like what everyone else was doing. He
M did not have any actual bodily contact with others. M
N N
36. After the fighting had lasted for a while, D1 got scared and
O asked the other defendants to leave together. In the end, he did leave the O
scene with D2.
P P
Q 37. The picture that Mr Ma attempts to paint is that D1 is just an Q
idiotic youngster with a previously good character who got caught in the
R R
moment and deserves to be given a chance.
S S
D2
T T
U U
V V
-9-
A A
B B
38. D2 is 20 years and 4 months old. Born in Hong Kong and
C single. He lives with his parents and elder sister. C
D D
39. The defendant left school without completing Form 4. He
E worked in a logistic company and then became a kitchen apprentice at E
different restaurants earning about $14,000 per month. The defendant
F F
would contribute $5,000 towards his parents’ living expenses.
G G
40. On the night of the offences, the defendant was drinking with
H H
his friends when one of them received a phone call from someone, telling
I them that D4 was being attacked. D2 had no knowledge about the attack I
and just followed everyone to see what was going on.
J J
K 41. When they arrived, things became chaotic and both sides were K
fighting. Although D2 did take part, he also tried to steady one of his
L L
friends’ emotions and pulled him aside.
M M
42. The fighting stopped after a short time and the defendant’s
N N
group started to leave, but then the victims’ group gave chase and fighting
O resumed. The defendant understands that what he did was wrong and that O
one of the victims suffered serious injuries.
P P
Q 43. The defendant fully accepts that he will be facing a term of Q
imprisonment. During his present remand, he had had time to reflect and
R R
realized that his parents love him dearly. The defendant took part in
S religious activities and is learning to adopt the right attitude in life. S
T T
U U
V V
- 10 -
A A
B B
44. Ms Lai referred to the case of HKSAR v Hung Gar Chun (熊
C 家駿), CAAR 9/2010 where the respondent was sentenced to 9 months’ C
imprisonment after trial for using a fruit knife he bought, after being
D D
displeased with the victim’s attitude of not allowing the defendant to see
E his younger sister, to stab the victim once. The victim suffered a deep E
laceration with massive internal bleeding. The victim’s spleen had to be
F F
removed, permanently affecting his immune system, rendering him
G constantly fatigued. G
H H
45. The Court of Appeal found the use of a lethal weapon, some
I I
degree of premeditation, serious harm suffered by the victim and the
J
severity of the offence warranted a heavier sentence. Having J
acknowledged that the sentences for the offence of ‘wounding with intent’
K K
should be within the range of 3 to 12 years 4 , the court found that the
L
appropriate sentence should be 30 months’ imprisonment, given it was a L
case of the prosecution reviewing the sentence of the trial judge.
M M
N D3 N
O O
46. D3 is 20 years old, educated up to Form One level. He was
P working as a hair stylist apprentice at the time of the offences. He is single P
and lives with his father, stepmother and elder brother.
Q Q
R 47. Mr Cheung told the court that on the day of the incident, D3 R
was drinking with his friends on his day off. D3 was already inebriated
S S
when one of his friends received a phone call from someone, telling him
T T
4
The Court cited the case of HKSAR v Yuen Wai Kui, CACC 280/2004.
U U
V V
- 11 -
A A
B B
that another friend had been injured in a fight. They therefore went to see
C what was going on and in the process a fight ensued. D3 joined the fight C
and committed the present offences out of impulse.
D D
E 48. D3 was 18 years old at the time. He indicated his pleas of E
guilty early on. He had written a letter in mitigation telling the court that
F F
in the 9 odd months that he has been incarcerated, he had reflected on his
G life and realized that he wanted to improve himself, but because of his G
education background, he would not be able to meet the minimum
H H
qualification requirement for most vocational training courses.
I Nevertheless, the defendant is remorseful and promises to turn a new leaf I
upon release.
J J
K 49. Mr Cheung referred to 3 cases to assist the court in sentencing: K
HKSAR v Lam Wai Tak ( 林 惠 德 ) and two others, CACC 248/2003;
L L
HKSAR v Tam Gar Kit (譚家傑 ), CACC 191/2015; and HKSAR v Lee
M M
Ming Tung and three others, DCCC 381/2017.
N N
50. Lam Wai Tak was a trial heard in the Court of First Instance.
O O
The facts are entirely different and the Court of Appeal specifically stated
P that the sentences they adopted were unique to the circumstances. As such, P
it is not helpful to sentencing D3 in the present case.
Q Q
R 51. In Tam Gar Kit, the appellant was convicted after trial of one R
charge of wounding with intent and one charge of assault occasioning
S S
actual bodily harm. There the appellant was 20 years old at the time of the
T commission of the offences. T
U U
V V
- 12 -
A A
B B
52. The facts of that case are that, the appellant’s friend had an
C argument with the two victims and was beaten up a few days before the C
attack. The appellant gathered a group of people to avenge his friend by
D D
attacking the two victims. They went together to the scene of the attack
E and no less than 6 people attacked the victims with wooden sticks. One of E
the victims had to receive craniectomy and was hospitalized for 10 days.
F F
The other suffered bone fractures in his palm and was hospitalized for 4
G days. There was no permanent damage. G
H H
53. The original sentence of 57 and 24 months’ imprisonment,
I with a final total sentence of 5 years and 3 months, was found to have been I
imposed upon the trial judge wrongly taking into consideration that
J J
provocation was an aggravating factor and that the attack had triad
K connotation. Sentences of 4 years and 18 months were substituted for the K
two charges, with a final sentence of 4 and a half years upon part of the
L L
sentence in the second charge being made concurrent.
M M
54. In Lee Ming Tung, the four defendants, together with around
N N
6 others, attacked the victims. One of the defendants used a metal pipe to
O hit the head of one of the victims, while the others punched and kicked O
them.
P P
Q 55. The assaults caused the victim of the wounding with intent Q
charge to lose consciousness. The attackers then took away the shorts (with
R R
his wallet inside) and underpants the victim was wearing, leaving him lying
S half naked in the park and then fled. S
T T
U U
V V
- 13 -
A A
B B
56. The victim suffered multiple abrasions, bruises on his face,
C palms, abdomen and left leg. He was hospitalized for 12 days. An MRI C
was conducted and it was confirmed that he had suffered subarachnoid
D D
haemorrhage and diffuse axonal injury to the cerebellum (a form of brain
E injury following head trauma). E
F F
57. My learned brother referred to the cases of Lam Wai Tak and
G Tam Gar Kit above and pointed out that the starting points there for the G
wounding with intent charge were both 4 years’ imprisonment.
H H
I 58. He then took into consideration the young age of the I
defendants, being 16 to 18 years old, and 15 to 17 at the time of the offence,
J J
with either a clear or very light criminal conviction record, their early
K indication of plea and decided to deal with them as leniently as the law K
would allow.
L L
M 59. There first defendant there, with one record for robbery and M
the one who used the iron pipe to attack the victim’s head, was sentenced
N N
to 28 months’ imprisonment after adopting a starting point of 3 and a half
O years’ imprisonment. O
P P
60. For the second defendant there, whom the judge found to be
Q of lesser culpability and with a clear record, a starting point of 3 years 3 Q
months’ imprisonment was adopted. A discount was granted on the basis
R R
of assistance given to the authorities, leading to a final sentence of 21
S months’ imprisonment. S
T T
U U
V V
- 14 -
A A
B B
61. For the third and fourth defendant there, both with just one
C previous conviction where they were sentenced to probation, the judge C
adopted a starting point of 3 years and 3 months’ imprisonment, resulting
D D
in a sentence of 26 months’ imprisonment after plea.
E E
62. In our present case, a training centre report was ordered to be
F F
prepared on D3. It is, however, D3’s wish to be dealt with by way of
G imprisonment rather than detention in a training centre. G
H H
SENTENCE
I I
63. The maximum sentence on conviction upon indictment for the
J J
offence of wounding with intent is that of life imprisonment.
K K
64. The maximum sentence under s 39 of the Offences Against
L L
the Person Ordinance is that of 3 years’ imprisonment.
M M
REPORTS
N N
O 65. Given the age of the defendants and the circumstances of their O
commission of the present offences, despite the wounding with intent
P P
5
charge being an excepted offence and hence s 109A of the Criminal
Q Procedure Ordinance, Cap 221 does not apply and imprisonment does not Q
have to be the last sentencing option, I ordered reports be prepared on each
R R
of them to assist in sentencing.
S S
D1’S BACKGROUND REPORT
T T
5
See Schedule 3 of the Criminal Procedure Ordinance, Cap 221.
U U
V V
- 15 -
A A
B B
C 66. D1 was already 22 years and 4 months old at the time of C
6
conviction, he is not eligible for detention in a training centre . Given that
D D
these are his first convictions and given the circumstances of the
E commission of the offences, I find it prudent to call for a background report E
before sentencing D1.
F F
G 67. According to the report, D1 was brought up in a working class G
family with inadequate and ineffective parental supervision. His parents
H H
had to work and so he was left with his grandparents. D1 got acquainted
I to some dubious peers in his secondary school days and turned wayward I
under their influence, leading a loose life with no stable employment upon
J J
quitting school after completing Form 4.
K K
68. D1 told the probation officer that he committed the present
L L
offences under the influence of alcohol, but he is willing to bear the
M consequences. M
N N
69. D1’s parents, especially his mother, are committed to the
O defendant and have been supporting and encouraging him during his O
present remand.
P P
Q D2’S TRAINING CENTRE REPORT Q
R R
70. D2 was 20 years and 4 months old at the time of conviction
S and would still be eligible for detention in a training centre. S
T T
6
See s 4 of the Training Centres Ordinance, Cap 280.
U U
V V
- 16 -
A A
B B
71. According to D2’s training centre report, he was brought up
C in a working class family with insufficient parental guidance and C
supervision. The defendant’s conduct at school took a down turn after his
D D
mother started to work in 2012. He got to mingling with some triad
E affiliated peers and became a member in mid-2014. His lack of interest in E
school and poor conduct led to him quitting school after completing Form
F F
3 in 2015. The defendant kept company with his dubious peers and led an
G idle life thereafter. G
H H
72. D2 then committed the various offences that he had been
I sentenced for. He was able to comply with the rules and made fair progress I
while being detained in a rehabilitation centre, and was able to work as a
J J
kitchen helper after receiving relevant training in 2017.
K K
73. He managed to finish his rehabilitation and went through the
L L
statutory one-year supervision period without incident. Unfortunately,
M upon the expiration of his supervision period in April 2018, D2 soon re- M
associated with his former triad peers, eventually leading to the
N N
commission of the present offences in June 2018.
O O
74. It is Officer Lo’s finding that D2 is mentally and physically
P P
fit for detention in a training centre, and he considers him suitable to be so
Q detained. Q
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D3’S TRAINING CENTRE REPORT
S S
75. D3 was 20 years old at the time of conviction. He had been
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sentenced to a term of imprisonment of 4 weeks in 2018. That was the
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only occasion when he was imprisoned. There was a 3 year period between
C his last detention in a training centre in 2015 and commission of that latest C
offence in 2018. It would appear that the detention might have helped D3
D D
and I wanted to find out what the relevant officers’ opinions are. A training
E centre report was ordered. E
F F
76. According to the report, D3’s mother left the family when the
G defendant was 2 years old. The defendant’s father was busily engaged in G
his work and the defendant was looked after by his paternal grandparents.
H H
I 77. Supervision was lacking and the defendant mingled with I
some dubious peers and became rebellious. He did not disclose his
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association outside, nor his personal feelings to his family and they keep a
K distant relationship. K
L L
78. The defendant was not fond of studying and did not do too
M well in school. He was left unattended most of the time and he began M
loitering in public parks and playgrounds in Tuen Mun after school.
N N
O 79. The defendant began using ketamine in June 2011 under the O
influence of one of his peers. He continued to use it occasionally until he
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was given a Superintendent’s Caution for smoking a dangerous drug.
Q Q
80. The defendant’s school performance further deteriorated after
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his promotion to Form One. He spent most of this time after school with
S his peers and maintained a carefree attitude, eventually leading to his first S
criminal convictions in 2012 when he was 12 and a half years old. The
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defendant was put on probation and was ordered to stay at a juvenile home.
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C 81. In March 2013, the defendant had to repeat form one. He C
continued to pay no attention to his studies while engaging in nocturnal
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activities with his peers. His probation order was extended as a result of
E another offence and he was ordered to study in a boarding school in E
September 2013. The defendant failed to attend school from late October
F F
2013 onwards and indulged in nocturnal activities. He was arrested for
G another violence related offence in December 2013. He was ordered to be G
detained in a detention centre in March 2014.
H H
I 82. Upon his release, and during the supervision period, the I
defendant was arrested for assault and claiming to be a member of a triad
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society in December 2014. He further committed the trafficking in
K dangerous drugs offence and subsequently other offences and was K
sentenced to be detained in a training centre in May 2015.
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M 83. D3’s performance in the training centre was fair and he was M
released on 27 September 2016. During the statutory 3-year supervision
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period, he worked as a kitchen assistant, waiter, salon apprentice and
O assistant at a barbeque site. He was, however, unable to remain in the same O
job for long.
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Q 84. Meanwhile, D3 re-associated with his dubious peers and soon Q
relapsed into using ketamine in late 2017. Under their adverse influence,
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the defendant committed the present offences in June 2018 and was put on
S the wanted list. S
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85. As a result of D3’s poor supervision performance, a recall
C order was issued in July 2018. During the period when D3 had absconded, C
he had quit his job at the barbeque site and became engaged to drug
D D
trafficking in July 2018.
E E
86. In December 2018, he was arrested for resisting a police
F F
officer and failing to produce proof of identity on demand and sentenced
G to 4 weeks’ imprisonment and fined. He was recalled by the training centre G
upon his release from jail. He had completed his recall treatment on 24
H H
May 2019 and was then remanded in Pik Uk Correctional Institution to
I await disposal for the present offences. I
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87. It is Officer Kwong’s finding that D3 is mentally and
K physically fit for detention in a training centre, and that from the K
information available and after a general assessment of his behavior and
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attitude while on remand, he is suitable to be so detained.
M M
SENTENCES
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O D1 O
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Charge 1: wounding with intent
Q Q
88. Given the seriousness of the injuries suffered by the victim,
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given the fact that the offence was committed by the defendant together
S with about 5 to 6 others, despite there being no use of lethal weapons such S
as knives, and despite his age and clear record, I find that a term of
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imprisonment is the only appropriate sentence for D1 in the circumstances.
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C 89. Bearing in mind the usual sentence of 3 to 12 years C
imprisonment for the offence, the sentences passed in the above referred to
D D
cases, and taking into consideration all the circumstances of the present
E case, including the fact that none of the victims suffered any permanent E
injuries, and in particular his previously clear record, I adopt a starting
F F
point of 3 years’ imprisonment. D1 is granted the full one-third discount
G for his guilty plea, and sentenced to 2 years’ imprisonment. G
H H
Charges 2 and 3: AOABH
I I
90. As for charges 2 and 3, I adopt a starting point of 12 months’
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imprisonment, leading to a sentence of 8 months’ imprisonment after plea.
K K
TOTALITY
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M 91. Given the circumstances of the commission of the offences, I M
find that the sentences in charges 2 and 3 should be served wholly
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concurrently to the sentence in charge 1.
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92. The final total sentence for D1 is, therefore, 24 months’
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imprisonment. I would just add that, having had the opportunity to hear
Q from D1 directly, I am convinced that he is genuinely remorseful and has Q
shown determination in picking himself up after this ordeal and trying his
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best to better himself.
S S
D2
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Charges 1, 2 and 3
C C
93. In relation to D2, it would appear that he is someone who
D D
might benefit from stringent supervision while he learns to be responsible
E for his behavior and try to develop into an adult. The previous stint of E
detention in the rehabilitation centre appeared to have achieved some short
F F
term positive result. He was able to comply with the rules and managed to
G be trained enough to be arranged to work in a restaurant. G
H H
94. Ms Lai for D2 drew my attention to the Magistracy Appeal
I case of R v Choi Chi Ming, HCMA 1034/1991, and submitted that despite I
the training centre report recommending detention, it is ultimately for the
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sentencing judge to decide on the appropriate sentence.
K K
95. She further pointed out that given the fact that the defendant
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has already been in custody for some 18 months, and since the usual period
M of detention in a training centre is typically 18 months to 3 years, the total M
period of detention of 36 months would have far exceeded the term of
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imprisonment in case involving circumstances like the present one, with a
O notional starting point of 54 months’ imprisonment. O
P P
96. I find that this is indeed an important factor to consider and it
Q is to be the sole basis of my choosing to impose a prison sentence and not Q
a training centre order on the defendant.
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S 97. Furthermore, having had the opportunity to talk with D2 S
directly in court, I am convinced that he is truly remorseful for his misdeeds
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and that he is determined to turn a new leaf after the present remand.
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C 98. Therefore, taking into consideration the fact that D2 has been C
in custody for almost 18 months, and having had the benefit of the detailed
D D
training centre report prepared by Officer Lo, I am satisfied that the most
E appropriate sentence to deal with D2 is by way of an immediate custodial E
sentence instead of detention in a training centre.
F F
G D2: Charge 1 G
H H
99. Given the seriousness of the injuries suffered by the victim,
I given the fact that the offence was committed by the defendant together I
with about 5 to 6 others, despite there being no use of lethal weapons such
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as knives, and bearing in mind the usual sentence of 3 to 12 years
K imprisonment for the offence, the sentences passed in the above referred to K
cases, and taking into consideration all the circumstances of the present
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case, including the fact that none of the victims suffered any permanent
M injuries, I adopt a starting point of 3 years and 3 months’ imprisonment in M
relation to D2. The higher starting point is a reflection of this not being
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D2’s first conviction involving violence.
O O
100. As mentioned above, D2 committed the present offences
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whilst on police bail pending investigation for another unrelated case. For
Q this aggravating factor, I will enhance his sentence by 3 months, leading to Q
a sentence of 3 and half years’ imprisonment. The defendant is granted the
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full one-third discount for his guilty plea, resulting in a sentence of 28
S months’ imprisonment after plea for charge 1. S
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D2: Charges 2 and 3
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C 101. As for charges 2 and 3, I adopt a starting point of 12 months’ C
imprisonment each, discounting them to 8 months’ imprisonment upon
D D
D2’s guilty pleas. I order that these sentences be served wholly
E concurrently to D2’s sentence in charge 1. E
F F
102. D2 is, therefore, sentenced to a total of 28 months’
G imprisonment for all 3 charges after plea. G
H H
D3
I I
Training Centre or not
J J
K 103. Similar to D2, I have given much thought to whether I should K
impose a training centre detention order on D3.
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M 104. The defendant left school early and, as he recognized in his M
letter, he would not be able to enroll into courses because of the lack of
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qualification. Detention in a training centre might allow the defendant to
O continue to try to develop a skill set in a particular trade and hopefully will O
allow him to be able to obtain gainful employment eventually.
P P
Q 105. If the defendant is sentenced to a term of imprisonment, he Q
will serve his sentence and upon rejoining society, he may find himself in
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the same position as he had been in before, with no skills and no
S qualification. Given his history, it is not difficult to picture him being S
driven back to his old way of life and this may not be the last time that he
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loses his freedom.
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B B
C 106. Be that as it may, and for the same reasons given above, I find C
the fact that D3 has been in custody for some 11 months an important factor
D D
to consider, and I do choose to impose a prison sentence instead of a
E training centre order to ensure that D3 is fairly sentenced. E
F F
107. Just as with D2, having had the benefit of hearing from D3
G directly in court, I am convinced that his remorse is genuine. D3 seemed G
open to the court’s suggestion that he should try to find some kitchen work
H H
first upon release, and then when he is more settled, he can proceed to look
I for other job opportunities, in particular work that relate to motor vehicle I
maintenance, which is something he enjoys doing.
J J
K D3: Charge 1 K
L L
108. Based on the same reasons given in relation to D2’s sentence
M on charge 1, I adopt a starting point of 3 years and 3 months’ imprisonment M
in relation to D3. Again, the slightly higher starting point being a reflection
N N
of this not being D3’s first offence involving violence.
O O
109. D3’s sentence on charge 1 is 26 months’ imprisonment after
P P
plea.
Q Q
D3: Charges 2 and 3
R R
S 110. I adopt the same 12 months starting point for charges 2 and 3, S
granting D3 the full one-third discount for his guilty pleas, and order the
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two 8 month sentences to be served wholly concurrently with the sentence
C in charge 1. C
D D
111. D3 is, therefore, sentenced to a total of 26 months’
E imprisonment for the 3 charges. E
F F
G G
( Douglas TH Yau )
H District Judge H
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