HKSAR v. Husseini Yawuza

Case No.CACC 118/2015

Court

Court of Appeal

Date16 Dec 2015

Judge—

Case Document

100%Judiciary

CACC 118/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 118 OF 2015

(ON APPEAL FROM DCCC NO. 931 OF 2014)

____________

BETWEEN

	HKSAR	Respondent
	and
	HUSSEINI Yawuza	Applicant

____________

Before : Hon Lunn VP in Court

Date of Hearing : 16 December 2015

Date of Judgment : 16 December 2015

Date of Reasons for Judgment: 18 December 2015

________________________

REASONS FOR JUDGMENT

________________________

1.The applicant, appearing in person, sought leave to appeal against his conviction on 30 March 2015 by the Court Judge Woodcock of a charge of inflicting grievous bodily harm on Patrick Martin Mansfield on 1 August 2014 in Cochrane Street, Central, contrary to section 19 of the Offences against the Person Ordinance, Cap. 212. Mr Richard Donald appeared on the applicant’s behalf in his application for leave to appeal against the sentence of two years’ imprisonment imposed on the applicant following his conviction. I refused the applications and said that I would give my reasons in due course. That, I do now.

The trial

2.There was no dispute that Mr Mansfield had received serious head injuries following a kick delivered to his head by the applicant, which caused Mr Mansfield to fall down some stairs and strike his head on the ground. CCTV film depicting different stages of the unfolding scene was adduced into evidence by admitted facts. Mr Mansfield suffered serious head injuries and was knocked unconscious. He was taken to Queen Mary Hospital, where he was detained in intensive care. He sustained a temporal contusion, a fracture of the left mastoid and left parietal scalp haematoma.

The prosecution case

3.The prosecution case was that, as Mr Mansfield and his wife made their way from Lan Kwai Fong to Hollywood Road to take a taxi, having stopped to buy some takeaway food in Cochrane Street, they encountered the applicant and another African male. Mr and Mrs Mansfield had consumed alcohol and Mr Mansfield was unsteady on his feet. Mr Mansfield had no recollection of what happened to him. Mrs Mansfield said that she thought her husband had bumped into somebody standing outside a bar in the street.

4.However, Mr Daniel Sexton witnessed the events, in particular the kick delivered by the applicant to Mr Mansfield. He first saw Mr Mansfield as he came down the pedestrian walkway, passing some metal railings dividing the walkway and descending two steps before ascending the steps on the other side of the metal railing. Mr Sexton was standing with a friend buying takeaway food. Then, he saw Mr Mansfield facing two African men who were facing downhill in relation to Mr Mansfield. Suddenly, one of the African men executed a spinning reverse high kick, which connected with Mr Mansfield’s head knocking him off his feet and causing him to fall down the steps where he landed on the ground. The two African men fled. Mr Sexton referred to photographs taken from the CCTV as depicting the movements of Mr Mansfield and the delivery of the kick to his head.[1]

5.Police officers went to the applicant’s home in Sham Tseng in the early hours of 2 August 2014. There, the applicant was arrested and cautioned for the offence of wounding Mr Mansfield. The applicant wrote in a police officer’s notebook an entry to the effect that Mr Mansfield had attacked him with punches and that he had thrown his leg instead of his hand. Subsequently, on 2 and 3 August 2014 video recorded interviews were conducted with the applicant.

The defence case

6.The defence challenged the admissibility of the out-of-court statements of the applicant. The applicant gave evidence on both the special issue and the general issue. The applicant’s wife was also called as witness in the special issue. The applicant said that a police officer suggested to him that he was acting in self-defence and had told him to write an entry to that effect in the notebook. It was the defence case that there were “…instances of impropriety, inducements, oppression as well as breaches of the 1992 Rules and Directions on the questioning of suspects.” [2]

7.In the general issue, the applicant testified that he had acted as he did in self-defence. He said that Mr Mansfield was the aggressor. First, he punched his head as he walked past him in Cochrane Street. When the applicant followed him to ask him why he had done so, Mr Mansfield hit him on the upper arm. As he ran away he was pursued by Mr Mansfield, who chased him around the central dividing rails and up and down the two steps on the pedestrian walkway hitting him twice more. Then, he kicked out at him in self-defence, fearing for his safety.

Reasons for verdict

The special issue

8.On the special issue, the judge ruled that the notebook entry compiled by the applicant was made voluntarily. She made similar findings in respect of the two video recorded interviews. However, she exercised her discretion to exclude the first video recorded interview, exhibit P6. The judge said that she was concerned about the role of the interpreter, in particular that not everything has been translated.[3]

9.As far as the second video recorded interview was concerned, she said that she placed weight on only those parts in which the questions were posed in English and the applicant’s answers in English. She found the applicant to be proficient in English as well as Twi, a language in Ghana. [4]

The general issue

10.In her findings on the general issue, the judge said that Mr Daniel Sexton’s evidence, whom she described as PW3, was “important”: [5]

“ …being a stranger to all parties, I do not believe he was biased or anything but independent. His evidence was unchallenged. He was sober and close to the incident. I am sure his evidence is reliable and credible.”

11.Of his evidence, she said: [6]

“ I am sure he first noticed the victim to his left and behind him when he came down the two steps and around the banister. He was then kicked. PW3 pointed this out when shown Photograph 6 of P2A. He did not notice anything prior to this. When I consider the defendant’s evidence, PW3 did not notice the victim chasing the defendant around in a circle, up and down those steps around that same banister “a few times”. He did not notice the victim hit or punch the defendant four times prior to the victim coming down the steps in Photograph 6. He did not hear anyone shouting stop. He said he had good peripheral vision and if that was the case and if there was a commotion such as that described by the defendant very close by, he would have noticed it much earlier I am sure. In fact, anyone nearby would have seen and heard this commotion described by the defendant if it happened.

I doubt it happened. That is why PW3 did not see or hear anything of the sort. Moreover, the CCTV of P2 did not capture the chase before the kick.”

12.In the result, she went on to determine: [7]

“ I am sure PW3 saw the defendant execute a spinning reverse high kick and made contact with the victim in his head, face, neck or jaw area. At that time, the victim had his hands by his side. He was not physically attacking or threatening the defendant. The momentum or force of the kick “knocked him off the stairs”.”

13.Of the applicant’s evidence, the judge said: [8]

“ The defendant said in answer to my direct question that he was chased around the banister of the two steps by the victim a few times. He draws on the sketch P7A during the video-recorded interview to demonstrate this chase up and down and around the stairs and banister. If this happened, we would see it and certainly their legs at least on the CCTV footage, and that is another reason I doubt it happened. There is a lapse of 15 seconds according to the timer on that CCTV camera where the victim disappears out of sight, approaching the defendant, but then reappears again coming down those two steps. Something obviously happened between the defendant and the victim within that time period but I am sure it was not as described by the defendant. I am sure he has fabricated the chase and numerous assaults by the victim to make out he kicked the victim in self-defence.”

14.Having said that it was “only just possible” that the applicant “…honestly believed or may have honestly believe that it was necessary to defend himself” [9], the judge went on to consider whether or not, in those circumstances, the amount of force used was reasonable. Of that, she said: [10]

“ I am very sure it was not reasonable.”

15.The judge rejected the applicant’s evidence of the circumstances in which he had delivered a kick, saying that she was sure that: [11]

“ …he knew what he was doing and chose to perform this martial arts kick at the victim, reckless whether he suffered an injury or not. It was entirely unnecessary to kick in this way and can only be excessive force not commensurate to the situation that night. I believe PW3’s evidence that when the defendant kicked the victim, the victim had his hands by his side and was not threatening the defendant.”

16.In the result, the judge concluded of the applicant: [12]

“ …he knew what he was doing and chose to perform this martial arts kick at the victim, reckless whether he suffered an injury or not. It was entirely unnecessary to kick in this way and can only be excessive force not commensurate to the situation that night. I believe PW3’s evidence that when the defendant kicked the victim, the victim had his hands by his side and was not threatening the defendant.”

17.In convicting the applicant of the charge, the judge said: [13]

“ I am sure beyond reasonable doubt when the defendant kicked at the victim in this dangerous manner, he was acting recklessly. I am sure the defendant himself saw the risk of injury to the victim and despite that went ahead and kicked him in this manner. As a result, the victim suffered really serious bodily harm. The defendant unlawfully and maliciously inflicted grievous bodily harm upon PW1, the victim.”

Grounds of appeal against conviction

18.In his 12 handwritten A-4 pages of home-made grounds of appeal against conviction, the applicant advanced no less than 25 grounds of appeal. However, they fall to be considered under discreet heads. First, that the judge erred in ruling admissible the police notebook entry, containing the applicant’s handwritten statement (exhibit P8). Secondly, she erred in having regard to anything contained in the second video record of interview (exhibit P7). Thirdly, the judge erred in finding Mr Sexton to be an important witness, whose evidence she accepted. Fourthly, the judge erred in rejecting the evidence of the applicant in both the special and general issues.

A consideration of the submissions

The special issue

19.The judge addressed the issues raised in the special issue at great length in her reasons for verdict, taking no less than ten pages in explaining her rulings. In the post-recorded notebook entry, after the applicant had been told that he was under arrest for wounding Mr Mansfield in Cochrane Street and after he had been cautioned, the applicant wrote in his own hand:[14]

“ He is attacking Me and I was running, he still chacing (sic) me with punches and attacking so I throw my leg instead of my hand for I didn’t intended to fall in any trouble.”

20.Of the applicant’s wife’s testimony of events at her home leading up to the making of the notebook entry by the applicant, the judge noted that she was looking after her daughter and determined: [15]

“ Her evidence was weak and at times contradictory. She describes what she saw and heard but at the same time when questioned more closely says she was distracted and had to look after her daughter.”

21.Of the fact that the applicant had been invited to write the entry himself, having determined it to have been “made voluntarily”, the judge said: [16]

“ The officer was correct to ask the defendant to write down whatever he wanted to say. In such a situation where the officer was not fluent in English and the defendant spoke English with an accent, it was prudent on the part of that officer to ensure a record of what is said under caution is accurate.”

22.Having noted that the applicant had given contradictory testimony as to the passage that he had written in the notebook saying, on the one hand, that he wanted to write the truth “so I write there” but, on the other hand saying that he did not understand what he had been told to write, the judge said: [17]

“ Lastly, he agreed to the question put that what he wrote in the notebook, P8, was written by him voluntarily and he added “I agree I wanted to tell them the truth”. His contradictions were not addressed in re-examination. His evidence was weak and contradictory I am sure because it was fabricated. I was satisfied the admission in the notebook after he was arrested and cautioned was voluntary and his own words. He wanted to tell the police he acted in self-defence, and that is what he did.”

23.Although the judge said that, having determined that the applicant’s statements in the second video recorded interview (exhibit P7) were made voluntarily, nevertheless she said that she exercised her discretion to give weight to the English answers of the applicant only. However, although the transcript extends to over 2,000 counters, the judge made no reference to her actual reliance on any such passage.

Conclusion

24.I am satisfied that there are no arguable grounds of appeal in respect of the judge’s ruling as to the admissibility of and weight to be placed on the out-of-court statements made by the applicant.

The judge’s reliance on the evidence of Mr Sexton and the rejection of the applicant’s evidence

25.The judge was entitled to determine that Mr Sexton was an independent and sober observer of the material events. In accepting his evidence, she noted that, in part, it was supported by CCTV photographs. [18] Of the CCTV, the judge said: [19]

“ P2A photographs show the victim and his wife walk up Cochrane Street after buying food. They walk past PW3 and his friend at 1:48:44 am in Photograph 2. They walk out of the camera frame. Then at 1:49:00 am, one can see the victim’s legs come down the two steps he had just walked up and go around a banister in the middle of the path, Photograph 6. One can see PW3 has turned his head towards the victim and one can see the defendant’s legs above the two steps and to the left of the path. He is wearing black or dark shoes and khaki or beige trousers. The victim walks up the steps towards the defendant at 1:49:01 am, and the defendant’s feet are by then spread apart and he adopts the stance needed to perform a spinning reverse kick, Photograph 8.

In Photograph 9 at 1:49:02 am, the defendant’s right leg is not visible and must be in the air. Only his left foot is visible. In Photograph 10, still at 1:49:02 am, his right leg is on its way down, having spun around and kicked the victim in the head or neck. The victim’s knees can be seen bending or buckling to the left. In Photograph 11, still at 1:49:02 am, the victim is falling, his back is visible, and the defendant’s feet are both seen almost level to the ground. When one compares the stance of his feet in Photograph 8 to the position of his feet in Photograph 11 and 12, one can see he executed a spin, raising his right leg and kicking the victim over. …. In Photograph 12, at 1:49:03 am, the victim has fallen down the stairs and his head is on the ground. In Photograph 13 of the same time, the defendant’s feet are pointing towards Ezra Lane, already getting ready to run away. In Photographs 14 to 17, you see the defendant run down that lane out of sight and the victim’s wife rush to his side. In all the photographs, one can see PW3 has turned his body and head, looking up Cochrane Street in the direction of the commotion.”

26.As noted earlier, the judge alluded to the fact that in his testimony Mr Sexton said that he saw none of the chase and assaults testified to by the applicant of him by Mr Mansfield was supported by the CCTV photographs. None of those events were recorded there, although clearly it was to be expected that some of them would have been captured. Clearly, the judge was entitled, as she did, to reject the applicant’s testimony in that regard and to determine:[20]

“ I am sure he has fabricated the chase and numerous assaults by the victim to make out he kicked the victim in self-defence.”

27.Similarly, the judge was entitled to accept the evidence of Mr Sexton that he had seen the applicant: [21]

“ … execute a stunning reverse high kick and made contact with the victim in his head, face, neck or jaw area. At that time, the victim had its hands by his side. He was not physically attacking or threatening the defendant.”

Conclusion

28.I am satisfied that there are no arguable grounds of appeal that the judge’s findings in respect of the applicant, his wife or Mr Sexton were made in error.

29.I am satisfied that there are no arguable grounds of appeal against conviction. Accordingly, I refuse the application for leave to appeal against conviction.

Reasons for sentence

30.In sentencing the applicant, the judge noted that he was a 28 year old Ghanaian, whose claim for asylum in Hong Kong was being processed. Also that he was married with two children. Further, that he had two criminal convictions, both in respect of dangerous drugs. In December 2012, he was sentenced to four months’ imprisonment for trafficking unlawfully in dangerous drug. In June 2013, he was sentenced to four weeks’ imprisonment, suspended for 30 months, for unlawful possession of dangerous drugs.

31.The judge noted that the maximum sentence for the offence of which the applicant had been convicted is three years’ imprisonment. Having noted that she had been referred to several authorities, albeit that she did not identify them, the judge said that there was no sentencing guideline for offences contrary to section 19 and that, “…sentences depend on the facts of each individual case.” [22] it is apparent from the transcript of the mitigation advanced by Mr Donald, that the judge was referred to two judgments of this Court [23] and a judgment on a Magisterial appeal.[24]

32.Having described the circumstances of the commission of the offence, the judge said of the kick delivered by the applicant to Mr Mansfield: [25]

“ From the time period seen in the photographs taken from the CCTV and the description given by PW3, the victim would not have seen that kick coming. I found the defendant lied when he said he had never kicked like that. I do not accept that anyone but a trained person could kick that way. He executed it with skill and precision and made contact with the victim’s head or chest. Such skill should not be used to attack. I did not find that this kick was executed in self-defence.”

33.Of the injuries sustained by Mr Mansfield, the judge said: [26]

“ The victim was in the intensive care unit for days. He suffered a fractured skull, fractured sinus bone and had a haematoma on his brain. He was rushed into surgery. He was in hospital for weeks. In fact, according to the medical reports which I have said are P15 to P17, he was put into a medically-induced coma. He did return to work a month later.

In his evidence in court, he says that his left hearing is impaired; and in December 2014, he had a seizure which meant he has had to go back to taking anti-seizure medication which he was given as a result of this injury. At the moment, he cannot drive and he cannot play football. Memory‑loss issues have arisen and he has been told by doctors to avoid any stressful situations. One cannot describe him as having fully recovered.”

The judge went on to say that whilst the injuries to Mr Mansfield were, “…not the only consideration where sentencing is concerned, it is still relevant.”

Starting point for sentence

34.In stipulating a starting point to be taken for sentence of two years’ imprisonment, the judge observed that the circumstances of the commission of the offence “were not the worst possible case of this nature but nonetheless it is serious.” Having noted that there were no reasons to impose a lower sentence, the judge imposed a sentence of two years’ imprisonment on the applicant. In addition, she ordered that the four week term of imprisonment imposed on the applicant in June 2013, which had been suspended, be activated and served consecutively to the sentence that she imposed. Accordingly, the total sentence of imprisonment imposed on the applicant was two years and four weeks.

Grounds of appeal against sentence

35.In the grounds of appeal against sentence advanced on behalf of the applicant, Mr Donald submitted that the sentence of two years’ imprisonment was manifestly excessive. He contended that the judge had erred in placing undue weight on what she determined to be the applicant’s lie that he had not kicked in that manner before. Further, he submitted that she failed to give full consideration to the following:

· there was no ill will in the kick;

· no weapon was involved;

· the applicant was being chased and acted instinctively;

· it was a one-on-one situation;

· the judge had found that the applicant may have honestly believed that he needed to defend himself;

· the injury to Mr Mansfield was not severe; and

· the assault was not premeditated.

36.In his written submissions, emphasised in his oral submissions at the hearing, Mr Donald submitted that the sentence imposed on the applicant was manifestly excessive, having regard to the judge’s finding that it was “only just possible” that the applicant honestly believed or may have believed that it was necessary to defend himself and that she determined that the defence of self-defence was not available to him on the basis that he had used excessive force.

A consideration of the submissions

37.There has never been any suggestion that the weapon was used in the attack on Mr Mansfield or that it was anything more than spontaneous conduct by the applicant, apparently following some unknown incident that happened between the two men immediately before the attack. It is clear that the judge proceeded sentence on that basis. The judge rejected the applicant’s testimony that he was chased, describing it as “fabricated”.[27]

38.Having conducted a trial which lasted 12 days the judge was well placed to determine the nature of the kick delivered by the applicant to Mr Mansfield. As she noted in her reasons the verdict, the CCTV photographs enabled a viewer to discern the stance adopted by the applicant and the method of spinning to effect delivery of the kick. Of the kick, she said, “the reverse kick was a reverse kick similar to those performed in taekwondo.” [28] She noted that Mr Sexton said that it was “a martial-arts-type kick” and that the “force of the kick knocked the victim of his feet” so that he fell and lay horizontally on the ground. [29]

39.Of the ability or skill to deliver a kick of that nature, the judge determined: [30]

“ The momentum or force of the kick “knocked him off the stairs”. I do not believe the defendant’s evidence this was the first time he kicked out like this. He described it as an intent to wave his leg to scare the victim away. This is a technically very difficult and skilful kick not executed by amateurs, and the CCTV footage photographs show the defendant executed it perfectly. He would not have executed this kick instinctively if he did not know how to do it.”

40.Relevant to the applicant’s culpability for the commission of the offence was the judge’s subsequent determination of the applicant: [31]

“ …he knew what he was doing and chose to perform martial arts kick at the victim, reckless whether he suffered an injury or not.”

41.It is clear that it was in that context that, in sentencing the applicant, the judge referred to the defendant as having “…lied when he said he never kicked like that. I do not accept that anyone but a trained person could kick that way.” Very obviously, the judge’s emphasis was not on the fact of the applicant’s lie, but rather on her finding that he was trained in the delivery of such a kick and had chosen to deliver a martial arts kick to Mr Mansfield.

42.The judge was entitled to make that finding and to regard it as highly relevant to the applicant’s culpability.

43.It beggars belief that it is contended by Mr Donald that the injury to Mr Mansfield was not severe. He was rendered unconscious immediately at the scene of the attack and, having been taken to Queen Mary Hospital by ambulance, was unconscious for the following eight days in an Intensive Care Unit. [32] It is clear from the medical records adduced at trial that came about because of intracranial pressure in the week following the operation, in which a right external ventricular drainage device was inserted into Mr Mansfield. The intracranial pressure required drainage of cerebral spinal fluid and sedation to control that pressure. The fracture of the left mastoid had left him with hearing impairment. Further, as the judge noted in December 2014 Mr Mansfield suffered a seizure as the result of which he is being given medication to prevent such seizures occurring. In consequence, he cannot drive or play football. Finally, she noted that he was suffering from memory loss and had been advised to avoid stressful situation. It was a considerable understatement for the judge to conclude that, “One cannot describe him as having fully recovered”.

44.Most helpfully, Ms Margaret Lau and those assisting her had taken steps to secure up to date information of Mr Mansfield’s condition. At the hearing, the Court was informed that he had suffered a seizure on 23 September 2015 whilst in Ho Chi Minh, Vietnam as a result of which he had been taken to an Accident and Emergency unit of a hospital. On his return to Hong Kong, as a result of consultations at Queen Mary Hospital, the dosage of the medication prescribed to inhibit the occurrence of seizures, resulting from the injuries that he had received from the attack by the applicant, had been increased. Further, he was taking steps to have a hearing aid fitted to compensate for the deficit in his hearing caused as a result of the attack. In that regard, he had been recommended to have a surgical procedure, ossicultoplasty, which necessitated the administration of a general anaesthetic.

45.It is true, as Mr Donald submitted that, having rejected the applicant’s testimony of being assaulted and chased by Mr Mansfield, nevertheless the judge did not reject the possibility that the applicant may have honestly believed that it was necessary to defend himself.[33] However, immediately thereafter the judge went on to reject the applicant’s evidence on that issue, determining that she was very sure that the “force used by the applicant was not reasonable.” [34] Mr Donald was unable to point to any thing in the reasons for sentence which suggested that the judge had sentenced other than on that basis.

46.In determining that the prosecution had made her sure that the applicant was not acting in self-defence, the judge said: [35]

“ I am sure as the victim walked past the defendant on Cochrane Street, something did happen. Whether he bumped into him or they had a verbal altercation, it happened in a matter of seconds, less than 15 seconds according to the CCTV timer of P2. The victim backed off and went back down the two steps. The defendant moved from the right side of the path to the left side and faced the victim as he walked back up the stairs towards the defendant. Defendant prepared himself to execute the spinning reverse kick by adopting the stance required and then kicked the victim after he got to the top of those two steps. I am sure that is what the CCTV and photographs show, supported by the evidence of PW3 who witnessed it.” [Italics added.]

47.In sentencing the applicant, the judge repeated that finding:

“ From the CCTV camera footage of P2, there is a 15‑second gap where the victim walks out of the camera range. That something, be it an altercation or a confrontation, happened within that 15-second period.

The facts are that from the footage and the independent witness’ evidence, the victim steps down two steps and goes to walk up the same steps. At the same time, one can see from the footage the defendant prepares himself and is ready to kick the victim. In my findings, he executed a dangerous and skilful reverse high kick with force. Instantaneously, the victim buckles and falls. PW3 described him as being knocked flying off the stairs.” [Italics added.]

48.In HKSAR v Chan King Yun, James [36], to which Mr Donald has referred the Court, this Court dismissed an appeal against a sentence of 20 months’ imprisonment imposed on the appellant following his conviction after trial of a single charge of inflicting grievous bodily harm on a man, contrary to section 19 of the Offences against the Person Ordinance. In the course of a basketball game at Victoria Park, the appellant thrust his elbows into the body of an opponent and then, having turned around so that he faced his opponent, punched him once in the face. His victim was seen to tremble, as if in a trance, and fall backwards hitting his head on the ground. He suffered serious injuries to his brain, so that he was unable to look after himself at all. In the judgment of the Court, Hartman JA noted that the judge had stipulated a starting point for sentence to two years’ imprisonment, from which he had afforded the appellant a discount of four months’ imprisonment, “principally in order to take into account that the attack was not premeditated and, aside from the elbowing, was constituted by a single punched in the face.” [37]

49.Noting with approval that the judge had taken into account the fact that the assault was an act of needless aggression, which took place in the context of a friendly game of basketball on a public court, Hartman JA said: [38]

“ Persons, young or old and of all levels of ability, who gather at public facilities to play a friendly game of sport must expect to be able to do so in safety. Violent aggression of the kind displayed by the applicant must be deterred.”

50.Of the fact that the judge had taken into account “the grave nature of the injuries sustained by the victim”, Hartman JA said that factor was “a seriously aggravating feature”, but there was nothing to suggest that “the judge placed undue emphasis on it.” [39]

51.The need for a deterrent sentence, in circumstances where violence is meted out by one player to another in a competitive physical sport, is all the greater in circumstances where people merely pass one another by in a public place in Hong Kong. Whilst any blow to the head is a serious assault, a martial arts kick which made contact with the “head, face, neck or jaw area” [40] of Mr Middleton, with the result that Mr Sexton described him as, “being knocked flying off the stairs” [41] before landing on the ground, was a seriously aggravating factor in the commission of the offence.

Conclusion

52.In the result, I am satisfied that the grounds of appeal against sentence are not reasonably arguable. Accordingly, I refuse the application for leave to appeal against sentence.

53.The applicant is advised that, following the refusal of his application by the single judge, he may renew his application for leave to appeal against conviction and sentence, if he wishes to do so, by filing Form XIII of the Criminal Appeal Rules, Cap. 221 within 14 days. However, he is informed that if the Court of Appeal comes to the conclusion that there was no justification for the renewal, it has power to make a direction for the loss of time, namely in respect of some or all of the time that the applicant has served in custody for this offence since he filed his notice of his application for leave to appeal pending the hearing of his application.