HKSAR v. Khan Mumtaz and Another

CACC000146/1997

IN THE COURT OF APPEAL

1997, No. 146
(Criminal)

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Coram: Hon. Power, V-P, Mortimer, V-P and Mayo, JA in Court

Date of hearing: 15 October 1997

Date of delivery of judgment: 15 October 1997

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The 1st Applicant was convicted after a trial before Judge Longley of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212 and the 2nd Applicant was convicted after a trial of 2 counts of doing acts tending and intended to pervert the course of justice contrary to the Common Law.

2. Both men now wish to seek leave to appeal against their convictions and the sentences of imprisonment imposed upon them. In the case of 1st Applicant he was sentenced to 2 1/2 years' imprisonment and the 2nd Applicant was sentenced to 9 months' imprisonment on both counts to be served consecutively.

3. The 1st Applicant's application for leave to appeal against conviction is out of time. The reason given for this is that he originally only intended to appeal against sentence and it was only later that he decided to also appeal against his conviction. No satisfactory explanation has been forthcoming for this failure to comply with the relevant time limit.

4. It was the prosecution case that a Filipino couple were travelling from Cheung Sha Wan to Central by the MTR. When the husband purchased the tickets he was confronted by the 1st Applicant who asked him why he was staring at him. He proceeded with his wife who was heavily pregnant on the train and nothing else untoward occurred.

5. On the journey back in the evening the couple saw the same man at the exit of the Cheung Sha Wan Station.

6. The husband claimed that after a short verbal exchange the 1st Applicant assaulted him first with an old fashioned portable telephone and then with a knife which occasioned him quite serious injuries none of which are fortunately permanent.

7. They were however in the opinion of the Judge sufficient to constitute wounding with intent under S17(a) and there is no issue on this.

8. The husband attempted to pursue his assailant but without success. However the portable telephone was left behind thus affording an opportunity of tracing the 1st Applicant.

9. Some time later the wife received a telephone call from a man who identified himself as Tony. He claimed to be speaking on behalf of the man who had assaulted her husband. He adopted what the Judge aptly described as a carrot and stick approach. He said that his friend would be prepared to pay the husband HK$4,000 - HK$5,000 if he didn't take the matter further. He went on to say that if he did pursue the matter he and his Pakistani friends would cause no end of troubles to them.

10. Tony left a paging number with her. The next day a report was made to the police. At the instigation of the police the wife called the number which had been given to arrange a rendezvous so that both defendants could be apprehended. During the course of the conversation Tony repeated the inducement and threats made in the previous telephone conversation. A meeting was arranged which was attended by both Applicants. Police officers were also present and the Applicants were arrested.

11. At the trial the 1st Applicant gave evidence to the effect when he assaulted the husband he was acting in self defence. The 2nd Applicant gave evidence to the effect that he was simply acting as a mediator and he denied making threats to the wife.

12. For the ample reasons given by Judge Longley he accepted the evidence of the Filipino couple and rejected the evidence to the Applicants. He found that the prosecution had proved all charges beyond a reasonable doubt.

13. It is however necessary to add that the Judge accepted that there had been a verbal exchange in the morning when the victim had bought tickets for the journey and that in all probability insults had been traded.

14. The 1st Applicant maintained in his grounds of appeal that the Judge had failed to appreciate his role in the affair. He also suggested that the prosecutor who had previously been known to him socially had been biased against him. He was unable to say how this had adversely impacted upon the trial.

15. The 2nd Applicant repeated the case he had run before the Judge that he had simply been a mediator and that he had not made any threats to the wife. He also criticised the prosecution evidence and referred to the fact with the wife's evidence had not been supported by other evidence and that no tape recordings of the telephone conversations had been adduced as evidence.

16. There is no merit in the grounds of appeal which have been advanced and these applications for leave to appeal against conviction are refused.

17. On the application for leave to appeal against sentence the 1st Applicant complains that his sentence was excessive. Having regard to the circumstances of the assault and the serious injuries sustained by the victim the sentence which was imposed was appropriate. It was at the higher end of the range of the appropriate sentences for this type of offence. It was not however manifestly excessive. This application is also dismissed.

18. So far as the 2nd Applicant is concerned we consider that a total sentence of 18 months' imprisonment was a heavy sentence in all the circumstances. We consider that there is some merit in the contention that the sentences imposed should have been ordered to run concurrently as the commission of the 2 offences was closely inter related.

19. We consider that an appropriate total sentence would have been 12 months' imprisonment. This result could be achieved by making 6 months of the sentence on the second count concurrent with the sentence on the 1st count. Treating the application as the appeal we make an order to this effect. To this extent the appeal is allowed.

Representation:

Mr. Arthur Luk, SADPP (DPP) for Respondent

Khan Mumtaz 1st Applicant in person

Adil Mohammad 2nd Applicant in person