HKSAR v. Roka Sijan

CACC 281/2017

[2018] HKCA 308

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 281 OF 2017

(ON APPEAL FROM DCCC NO 436 OF 2016)

________________________

________________________

Before: Hon Macrae VP in Court

Date of Hearing: 25 May 2018

Date of Judgment: 25 May 2018

________________________

J U D G M E N T

________________________

1.On 26 June 2017, the applicant was convicted after a trial in the District Court before HH Judge Woodcock (“the judge”) on two charges of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212. On the same day, he was sentenced to an overall term of 5 years’ imprisonment.

2.On 11 September 2017, the applicant filed a Form XI Notice applying for leave to appeal against both his convictions and sentences out of time.

Prosecution case

3.On 18 July 2015, at about 8 am, PW1 (Mr Gurung Yasish), PW2 (Mr Rai Bipin) and PW3 (Ms Limbu Sangeeta) had finished work and were having a drink together at a bar called the Buddha Lounge situated on G/F, Amber Lodge, Nos 21‑25 Hollywood Road, Central.  All three were Nepalese and colleagues.  The applicant was an acquaintance of PW1 and an ex‑boyfriend of PW3.

4.Whilst inside the bar, PW1, PW2 and PW3 were approached by the applicant and two other males.  Without saying anything, the applicant slapped PW3’s face[1]. PW1 pushed the applicant away and left the bar together with PW2 and PW3 through a backdoor.  Having put PW3 in a taxi, PW1 and PW2 returned to the front door of the bar where they saw the applicant and his friends again.  At about 10:18 am, a confrontation ensued, following which the applicant attacked PW1 with a “kukri” knife.  In trying to protect PW1, PW2 was slashed on his arm. The applicant then chopped PW1 continuously until the latter fell to the ground.

5.The attack on the pavement outside the Buddha Lounge was captured by the closed circuit television camera (CCTV) of a nearby bakery[2], and another CCTV camera outside a bar called Marouche[3], which are in close proximity.

6.It was not disputed that PW1 and PW2 were wounded in the attack.  In particular:

(a)   PW1 sustained multiple chop injuries to his neck, left elbow, left wrist, left leg and left thigh.  There was a 12 cm gash from the right side of the neck extending to his back, a 5 cm laceration on his left wrist; an 8 cm laceration from the left elbow down to the elbow joint; and a 3cm laceration over his left posterior calf[4].

(b)   PW2 suffered chop injuries to his right elbow, with external bruising and an open wound at the site, a fracture of the right ulna bone with a deep laceration of the muscles[5].

7.It was also not disputed that, later that same day, at 5:44 pm, the applicant left Hong Kong for Nepal through the Airport. He did not return until 30 January 2016, when he was arrested but remained silent under caution[6]. Hence the delay in prosecuting this case.

8.The applicant was charged with wounding PW1 (Charge 1) and PW2 (Charge 2), with intent to cause each of them grievous bodily harm.

9.When cross-examined at trial, PW1 was adamant that he saw someone whom he did not know pass a “kukri” knife to the applicant who then used the same to chop him[7]. He was sure that he had correctly identified the applicant as the attacker[8].

10.PW2 accepted that he was unable to identify the attacker.  He was slashed on his forearm when trying to separate PW1 from the other men.  He felt a metal object strike him[9].

11.PW3 testified that she was married in February 2015 but the applicant did not find out about it until June 2015. Nevertheless, she considered that they were on good terms.  She did not know why the applicant had slapped her.  She said she only subsequently came to know, after leaving the Buddha Lounge, that PW1 and PW2 had been attacked.

12.PW4 was a shopkeeper of the bakery and witnessed the attack in question.  She examined the CCTV footage and said the long object held by the attacker was a knife.

Defence case

13.The applicant testified himself but did not call witnesses.  Whilst admitting that he slapped PW3 because he was angry about their break‑up, the applicant denied attacking PW1 and PW2 by which time he had left the Buddha Lounge in a taxi.  He said that PW1 either “framed” him or misidentified him as the attacker.  When shown the CCTV footage[10] depicting a shirtless man walking along Hollywood Road after 10 am that day, he said “it must be someone else that looks like me”[11]. He also made clear that he had already booked an air ticket in advance for his return to Nepal that evening.

Reasons for verdict

14.Having noted that, as between PW1 and the applicant, it was “a case of recognition”[12], the judge accepted PW1’s identification[13], which she said was also supported by the CCTV footage[14].  She went on to say that “the evidence is strong and irrefutable”[15], having also found upon her own examination of the CCTV footage that the attacker looked “very much like” the applicant[16]. The judge found as a fact that the shirtless man was the applicant[17].

15.Furthermore, the judge found PW1’s evidence credible[18] and that “PW2 and PW3, where materially relevant, supported [PW1’s] evidence”[19].

16.As regards the applicant’s evidence, the judge specifically rejected his claims that he was “framed” by PW1 and that he left the Buddha Lounge immediately after slapping PW3[20]. The judge however placed no weight on the fact that he left Hong Kong later the same day[21].

17.The judge found that, although the applicant’s initial intended target was PW1 alone, he nevertheless intended to harm PW2 in order to get at PW1.  Accordingly, she found that the applicant had wounded both victims with a “kukri” knife with intent to cause each of them grievous bodily harm.[22]

Mitigation

18.At the time of the offences, the applicant was 21 years of age and worked as a disc jockey earning about $15,000 per month.  He had no previous convictions.

Reasons for sentence

19.The judge said that there was no tariff for the offence of wounding with intent, the maximum sentence for which was life imprisonment.

20.She described the assault as a “frenzied” attack, which was obvious from the CCTV footage and the photographs depicting the victims’ injuries.  She observed that PW1’s injuries were particularly “serious and lasting”[23]. The judge also noted that the attack took place on a Sunday morning at a location where many pedestrians, including children, might be expected to be present.

21.The judge considered that a global sentence of 5 years’ imprisonment was appropriate.  She accordingly sentenced the applicant to 5 years’ imprisonment on Charge 1, and 4 years’ imprisonment on Charge 2. She ordered both sentences to run concurrently, resulting in an overall sentence of 5 years’ imprisonment.

Ground of appeal

22.The applicant did not articulate any grounds of appeal in his Form XI or any other document.  However, this morning he has furnished me with a 5‑page typed document making various points about the evidence and calling into question the competence of his counsel.  He has nevertheless told me candidly that what he is “really concerned” about is his sentence.  He has not, however, satisfactorily explained why he was late in taking out these applications.

Respondent’s submissions

23.Ms Hermina Ng, on behalf of the respondent, has argued that there was sufficient evidential basis to support the convictions on both charges and the judge’s findings cannot be impugned.  She also submitted that the judge was correct in arriving at the sentences she did, which individually and cumulatively were neither manifestly excessive nor wrong in principle.  She pointed out the severity of PW1’s injuries, from which by the time of trial almost 2 years after the incident, PW1 had still not recovered.  Indeed, he had been in hospital for 10 days after the assault.

Consideration

24.The judge gave cogent reasons why she was satisfied so that she was sure of the applicant’s guilt, given that this was a case of recognition not identification.  She heard and saw the witnesses and ruled out any grudge between the parties which might have accounted for PW1 falsely accusing the applicant.  Indeed, in his written submissions this morning, the applicant also averred that he had no grudge with PW1.  Furthermore, the CCTV evidence was capable of supporting PW1’s evidence that it was the applicant who had attacked PW1 and PW2 with the requisite intent.

25.I can see no reasonable grounds for the appeal against conviction.  Nor has the applicant provided any satisfactory explanation, apart from saying that this hearing is only a leave application, as to why he was late in lodging grounds of appeal.  Leave to appeal against conviction is accordingly refused.

26.In respect of sentence, these were extremely serious and dangerous assaults in a public place with a lethal weapon on two victims.  The injuries inflicted will inevitably leave obvious and permanent scarring, particularly to PW1.  Both victims were defenceless at the time they were attacked, with the attack continuing even after PW1 had fallen to the ground.  The applicant’s clear record cannot be a significant factor with crimes of such violence.

27.Although there is no specific tariff for such an offence, I can see no reasonably arguable grounds of appeal against an overall sentence of 5 years’ imprisonment after trial.  Again, the applicant has given no satisfactory explanation as to why he was late in lodging his Notice of appeal against sentence.

28.The applications for leave to appeal against both conviction and sentence out of time are refused.  However, the applicant is reminded that he has the right to appeal to the Court of Appeal against either or both of his applications for leave, but he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody, if the Court were to come to the view that there was no justification for the renewal of either or both application(s).

Ms Hermina Ng SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person