HKSAR v. Roka Sijan

CACC 281/2017

[2018] HKCA 986

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)

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Before: Hon Macrae VP, Pang and Zervos JJA in Court

Date of Hearing: 18 December 2018

Date of Judgment: 18 December 2018

Date of Reasons for Judgment: 28 December 2018

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REASONS FOR JUDGMENT

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Hon Zervos JA (giving the Reasons for Judgment of the Court):

1.This is a renewed application by the applicant for leave to appeal against conviction and sentence out of time, having had his application refused by Macrae VP on 25 May 2018.

2.We first dealt with his application for leave to appeal against conviction out of time which we refused.  We therefore dismissed the appeal.  We next dealt with the application for leave to appeal against sentence out of time which was abandoned by the applicant after we reminded him that on an appeal against sentence the Court had power under section 83I(3) of the Criminal Procedure Ordinance 221, to either increase or reduce the sentence.  We therefore refused his application and dismissed the appeal.

3.We finally requested the applicant to address us on why we should not invoke the power under section 83W(1) of the Criminal Procedure Ordinance and make a loss of time order against him.  After hearing from the applicant, we ordered that 2 months of the time spent by him in custody pending the determination of his appeal shall not be counted towards his sentence.

4.At the conclusion of the hearing, we said that we would hand down our reasons for our decision in due course.  These are our reasons.

The charges

5.On 26 June 2017, following a trial before District Court Judge Woodcock (the judge), the applicant was convicted of two charges of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212, and sentenced to a total term of 5 years’ imprisonment.  It was alleged that the applicant, on 18 July 2015, outside the Buddha Lounge in Central, attacked and wounded two men with a knife.  The participants involved in this incident were Nepalese.  There was no dispute that the two men had been attacked and the sole issue at trial was whether the applicant was the attacker.

Application to appeal out of time

6.On 11 September 2017, the applicant filed a Form XI Notice, applying for leave to appeal against both conviction and sentence out of time.  The applicant did not articulate any reasons for the delay in filing the appeal notice, nor any grounds of appeal, except to state in an accompanying affirmation dated 8 September 2017 that he was not convinced by his conviction and sentence.

7.On 25 May 2018, Macrae VP refused the applicant’s application for leave to appeal out of time, having found that there were no reasonable grounds for the appeal against conviction and sentence, and that no satisfactory explanation had been provided by him as to why he was late in lodging his appeal notice. 

8.At the leave hearing, the applicant appeared in person, having had legal aid refused.  He submitted to the court a 5-page document dated 13 May 2018. 

9.Of his conviction, the applicant stated he was not the attacker of the two men.  He claimed that at the time of the attack he had left the scene and was in Yau Ma Tei with a friend.  He complained that his counsel had failed to call his friend as a defence witness.  He further stated that at the time he was wearing a red Nike T-shirt and glasses, and was not shirtless as the attacker was depicted at one stage on CCTV footage.  He complained that his counsel did not explore this matter at trial. 

10.Of his sentence, the applicant complained that it was manifestly excessive and wrong in principle.

Renewed application to appeal out of time

11.On 7 June 2018, the applicant filed a Form XIII Notice, applying to renew his application for leave to appeal against conviction and sentence out of time.  Attached to the application is a 19-page document, in which he repeats the points he made previously and complains that he was framed or misidentified as the attacker.  He questions his conviction by challenging the evidence presented against him and complaining about the conduct of his case by his counsel. 

12.In summary, the applicant submits the following.  He states that he was not at the location at the time of the incident, but with a friend in Yau Ma Tei, prior to taking a flight to Nepal that had been previously arranged.  He claims that a statement had been taken from his friend but he was not called by his counsel to give evidence.  We note that no alibi notice was given by the applicant in accordance with section 75A of the District Court Ordinance, Cap 336.

13.He states that he was not wearing a chequered or patterned shirt that was shown to have been worn by the attacker on the CCTV footage.  He claims that he had informed his counsel about the matter but it was not pursued by him at trial.  He states that the main victim (PW1), who identified him as the attacker at trial, had framed him because he settled the matter with the actual attacker who had triad connections.  He also puts forward other theories as to why PW1 would frame him.  He questions and analyses aspects of the evidence of the main prosecution witnesses, (PW1, PW2, and PW3), in order to show that they were either untruthful or wrong.  He states that the judge was mistaken in concluding that the attacker shown on the CCTV footages was him, pointing out that he has the typical physical characteristics and features of males of his ethnic origin which would make it difficult to distinguish him from others.

14.The applicant filed a 14-page document on 15 October 2018, in which he provides also a narrative on the prosecution case and the judge’s findings.  He reiterates that he was not at the location at the time of the attack and that PW1 has framed him as the attacker.  We will deal with this latest document when we discuss his complaints in relation to his conviction.

The prosecution case

15.The prosecution case was that on 18 July 2015, PW1 (Mr Gurung Yasish), PW2 (Mr Rai Bipin), PW3 (Ms Limbu Sangeeta) had finished work in a bar in Central after 6 am and went for a drink together in the Buddha Lounge on Hollywood Road.

16.They were together inside the bar when the applicant and some friends came in and approached them.  All of them were Nepalese.  The applicant was the ex-boyfriend of PW3.  The applicant was also known to PW1 as they had worked together in the past.  Without warning, the applicant slapped the face of PW3.  PW1 and others in the bar came to the defence of PW3.  The applicant wanted to strike her a second time, but PW1 pushed him away.  PW1 and PW2 escorted PW3 out of the bar through the back door to avoid any further confrontation.

17.At about 9:45 am, PW3 was put in a taxi by PW1 and PW2, who both returned to the entrance of the Buddha Lounge where they saw the applicant and his friends again.  There was a confrontation and the applicant attacked PW1 with a kukri, a Nepalese knife with a curved blade that was about 40 to 45 cm long.  At that moment, PW2 and another man tried to restrain PW1, and in the attack by the applicant, PW2 was chopped once to his arm.  He then immediately retreated.  The applicant then chopped PW1, who tried to protect himself with his hands and arms.  The applicant chopped him repeatedly until he fell to the ground but he managed to get up and run away.  The applicant chased after him but he was restrained by two men who led him away.

18.The attack took place on the pavement outside the Buddha Lounge and was captured by CCTV cameras in the locality.  It was about 10 am on a Sunday morning, with adults and children out on the streets.

19.It was not disputed that PW1 and PW2 received wounds after the attack.  Nor was it disputed that later the same day the applicant left Hong Kong for Nepal.  He returned to Hong Kong on 30 January 2016, when he was arrested.

20.PW1 testified that when the applicant saw him at the entrance of the Buddha Lounge, he shouted, “Give me kukri, kukri,” and he saw a man take one out of a bag and hand it to the applicant.  He said that the applicant attacked him with the kukri.  At the time, PW2 was next to him.  He said he put his arms up to protect his head, as the applicant chopped him repeatedly.  He was eventually able to run away.  He later saw PW2 and noticed that he was also injured. 

21.It was put to PW1 that he identified the wrong person as his attacker but he was adamant that it was the applicant who attacked him.  He agreed that there was no bad blood between he and the applicant, nor did they bear any grudges against each other.

22.PW2 testified that after leaving the Buddha Lounge and putting PW3 into a taxi, there was a dispute between PW1 and some other Nepalese men.  He said he tried to separate PW1 from these men when he was suddenly chopped on the forearm.  He said he did not see who did it, but he felt a metal object strike him once.  He knew he had been hurt and immediately retreated.

23.PW3 testified that she had previously been going out with the applicant but got married in February 2015.  It was not until June of that year that the applicant found out about it.  However, she thought that they were on good terms and would sometimes talk to each other over the telephone. She said that the applicant came into the Buddha Lounge with two or three other men and without warning slapped her face.  She said that PW1 came to her defence and she thought that he pushed the applicant away.  They then left through the back door of the bar to avoid any further trouble.  Not long after, PW1 and PW2 put her in a taxi to go home.  She said she did not know why the applicant slapped her and it was later that day that she came to know that the applicant had attacked PW1 and PW2.

24.PW4 was an employee of the bread shop close to the Buddha Lounge.  She witnessed the attack.  She said that she heard men arguing outside the shop.  She saw a man with a long knife chop another man. She identified the attacker, wearing what looked like a checked or patterned shirt, wielding a knife, from the CCTV footage that was retrieved from the shop’s camera.

The defence case

25.The applicant gave evidence at trial but did not call any witnesses.  He testified that on that morning he had just finished work as a “DJ” in a bar in Central.  He had gone to the Buddha Lounge with friends to have a drink.  He admitted that he slapped PW3 because he was angry about their breakup.  He said other people pulled him away, not PW1.  He said that PW1 did not do anything and did not defend PW3.  He left the bar and went to wait for a taxi.  He got one about 30 to 40 minutes later and went to Jordan.  He said farewell to his friends because he had booked a trip back to Nepal later that day to get married.  He said that the ticket had been booked on 10 July 2015 in advance.  He denied that he attacked PW1 and PW2 because by that time he had left, and was in a taxi.  When he was shown the CCTV footage depicting a shirtless man walking along Hollywood Road after 10 am that day, he said “It must be someone else that looks like me”. 

26.The applicant’s case was that he did not dispute that PW1 and PW2 suffered serious injuries that morning, but he was not responsible for them.  He said he had left the scene, so PW1 had either framed or misidentified him as the attacker.  He also said that he did not leave the jurisdiction because of this incident.  He had booked his air ticket in advance for his return to Nepal to get married.  The marriage was to take place on 16 November 2015.

The reasons for verdict

27.The judge in her reasons for verdict carried out a comprehensive review of the evidence, and after a detailed and careful analysis, accepted PW1’s identification of the applicant as the attacker, which she noted was also supported by the CCTV footage.  She found PW1’s evidence credible, which was supported by PW2 and PW3 where materially relevant.  She specifically noted that PW1 knew the applicant from working together in the past and that he would have no problem or issue in identifying him, and that there was no bad blood or any grudges between them.  She was sure that PW1 stepped in to defend PW3 when the applicant slapped her in the Buddha Lounge, which was not long before the attack on PW1 took place.

28.The judge set out at length what she observed after watching the CCTV footage, providing a meticulous description of the sequence of events.  She observed the attacker running towards two men.  She further observed that the attacker was wearing a patterned shirt and white sole shoes and that later he was shirtless.  She found that the shirtless man was the applicant.  We note that the CCTV footage provided a clear and close up image of the shirtless man.  She noted that when the applicant was shown the CCTV footage of the shirtless man he said “It must be someone else that looks like me.”  Having reviewed and analysed all the evidence, she concluded that it was not just someone who resembled him, but “it is the defendant.” 

29.The judge was satisfied that the CCTV footage supported PW1’s identification of the applicant, stating that “the evidence is strong and irrefutable.”

30.The judge addressed the applicant’s evidence and she specifically rejected his claims that he was framed by PW1 and that he left the Buddha Lounge by the time the attack had taken place.  She placed no weight on the fact that the applicant left Hong Kong later the same day, and it did not form any part of her reasoning in convicting him of the two offences of wounding.

31.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.  She therefore found that the applicant had wounded both victims with a kukri knife with intent to cause each of them grievous bodily harm.

The appeal against conviction

32.The overall thrust of the applicant’s written submissions seek to reargue his case by asserting a number of matters that were not given in evidence at trial.  He does not raise any matters of significance, and crucially ignores the cogent evidence of the CCTV footage that the judge found depicted the applicant as the attacker in the incident. 

33.He makes the following points.  He states that it was said by the prosecution that PW1, PW2 and PW3 went for a drink after 6 am, but it was not until 8 am that PW3 went to the Buddha Lounge, and that in that time he had met up with her.  It seems from the way he describes this matter that this account was not given in evidence and is something he is now asserting to be the case.  Even so, the fact remains that he admits that he went to the Buddha Lounge and slapped the face of PW3, which seems to have resulted in the attack that followed on PW1 and PW2.  He questions why would he be on the “warpath” with PW1 and why would “I have to wound him so badly” when there was no bad blood between them.  The evidence accepted by the judge was that PW1 came to the defence of PW3 after the applicant had slapped her and the attack followed this incident. 

34.He claims that PW1 framed him and that he must have resolved his dispute with the actual attacker.  This was rejected by the judge, and in any event, it ignores the cogent evidence of CCTV footage that the judge found depicted him as the attacker.  He questions PW3’s evidence about him and several men going to her home to confront her.  He gives his account of the encounter but this adds nothing to his case or any issue at trial.  This is of no significance in this application.

35.He claims that after finding out PW3 had got married, his family arranged for him to marry someone else.  He planned to have a long vacation in Nepal and then get married.  This seems to be an explanation for his departure from Hong Kong on the day of the attack.  The judge stated in her reasons for verdict that she did not draw any adverse inference against the applicant in relation to this matter and it is therefore of no significance in this application.

36.He gives an account of a meeting with PW3 prior to the Buddha Lounge and states that it was by accident that he then saw her again in the Buddha Lounge.  He states that he did not have any issue with PW1 and PW2 and did not understand why PW1 framed him.  Again, this was a matter that was an issue at trial and the judge rejected the claim that PW1 had framed him. 

37.He gives an account of going to Nepal and returning to Hong Kong, which is of no relevance to this application. 

38.He claims that after he was convicted, legal representation had been arranged for him but his legal representative did not see him and that was why he filed his appeal notice out of time.  He now claims that the legal team that had been provided to him were not acting in his best interests.  He continues to maintain that he was framed.  We find no substance in these claims. 

39.He went on to express his views about the prosecution case and the evidence, and asked a number of rhetorical questions about the case against him.  However, this ignores the judge’s careful analysis of the evidence and her findings, and more particularly the direct evidence of PW1, supported by the CCTV footage, who identified him as the attacker. 

40.He also raises matters that are totally irrelevant.  One such matter was that PW1 said in evidence that at first he did not feel pain when he was slashed and suggested that this showed he must have been on drugs. 

41.He emphasises that PW2 did not identify him.  This is true, however, unlike PW1 who knew the applicant, PW2 did not know him.  PW2 also immediately retreated when he got slashed. 

42.He comments finally on PW3’s evidence as to how she has taken out by the back door to avoid further trouble and that she left a message that something was going to happen, and questions how would she know. That might be simply explained by the fact that he slapped her face and had to be restrained, and his emotions were high. 

43.We find absolutely no substance in the points raised by the applicant, which are totally devoid of merit. 

44.As we have already said, the judge carefully analysed the evidence, and examined at length the CCTV footage.  She heard and saw the witnesses and ruled out that PW1 had framed or misidentified the applicant as the attacker.  She accepted the evidence of PW1 and noted it was a case of recognition not identification.  She accepted PW1’s evidence that the attacker was the applicant and this was supported by the CCTV footage.  She found from the CCTV footage that the attacker (the man who was shirtless at one stage) was the applicant.

The appeal against sentence

45.This was an extremely serious and sustained attack in a public place by the applicant with a lethal weapon (a kukri knife) on two victims.  Both victims were defenceless at the time of the attack and both sustained serious injury, particularly PW1.  The applicant chopped PW2 because he got in the way in his pursuit of PW1 and when he eventually got to PW1, he chopped him many times to his neck, left elbow, left wrist, left leg and left thigh. 

46.The judge noted that the scars from these injuries showed that PW1 was a victim of a frenzied attack.  She particularly noted the scar to his neck, which was over 12 cm long wrapped around his neck. She said that the applicant kept on chopping PW1, even when he had fallen to the ground.  She said that he wanted to continue chopping him, but fortunately he was restrained by his friends, and PW1 was able to get up and run away. Even then the applicant still wanted to pursue him. 

47.The judge noted that the frenzy of the attack was clearly apparent from the CCTV footage and that no one could have helped PW1 at that moment.  She said that if he had not had the strength to get up and run away, “I do not think he would be here to give evidence.”  She added that this showed how serious a case it was and that she had not seen injuries like this in such a case before.  We entirely agree.  This was a very serious case of wounding.

48.In mitigation, defence counsel accepted that the injuries suffered by PW1 and PW2 were serious, and that PW1 particularly sustained “lasting injuries”.  He noted that the general range of sentences for such an offence was between 3 and 12 years’ imprisonment.

49.The judge in her sentencing remarks noted that there were no tariffs for such an offence and that sentences were case specific.  However, she went on to note that there were relevant factors that put the sentence to be imposed at the higher end of the scale.  She said:

“Those include the fact the assault or the attack was in public. It was at 10 am on a Sunday and from CCTV footage there were many people walking up and down that section of Hollywood Road, including children. The attack continued when PW1 was on the ground and unable to defend himself at all. There was no evidence the defendant was provoked by PW1 to such an extent that it could justify such a response. PW1 in particular suffered very serious and lasting injuries.”

50.The judge considered that a global sentence of 5 years’ imprisonment was appropriate.  She 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 a total sentence of 5 years’ imprisonment. 

51.We were of the view that the overall sentence of 5 years’ imprisonment was very lenient in the circumstances of the case, but in fairness to the judge, she may have felt constrained by the jurisdictional ceiling of the District Court of 7 years’ imprisonment. 

52.Any form of violence must be visited by condign punishment in order to serve the purposes of retribution and deterrence.  This is especially true in cases of wounding, where the element of the offence is that the offender intended to inflict really serious injury on the victim.  Whilst there are no sentencing guidelines for wounding, it has been said that the usual range will be between 3 to 12 years’ imprisonment, although this will very much depend on the particular circumstances of each case.  See HKSAR v Tse Hok Lam [2005] HKLRD 344 and HKSAR v Chun Sze Wing, CACC 289/2011, 14 June 2012, unreported at paragraph 12.  However, we would add that in very serious cases of wounding, a sentence outside this range may well be warranted. 

53.Key factors in determining the appropriate level of sentence for the offence of wounding, include the nature and circumstances of the assault, the use of a weapon and the circumstances of its use, the defenceless state of the victim, and the nature and effect of the injuries suffered by the victim.  For these factors, the judge in the present case should have imposed a much higher starting point.  The applicant called for a “kukri” which was given to him, and he then engaged in a deliberate and sustained attack on PW1.  He chopped PW2 first in his pursuit of PW1.  Both men were unable to defend themselves.  He continued to attack and strike PW1, even when he laid on the ground.  The applicant struck several blows at and near the neck of PW1, a vulnerable part of the body, which could have been fatal.  PW1 sustained serious injuries all over his body, which will have a lasting effect on his future wellbeing and quality of life.  PW2 also sustained a serious injury even though he was struck only once.

Conclusion

54.In light of the foregoing, we refused the renewal application for leave to appeal against conviction out of time and dismissed his appeal against conviction, and we refused the renewal application for leave to appeal against sentence out of time and dismissed the appeal against sentence, following his abandonment of the renewal application.

Loss of time

55.As noted by Macrae VP, when leave was refused, an applicant whose application for leave has been refused by a single judge runs the risk, upon a renewal of that application to this Court, that the Court will take a similar view as to the lack of merit of the application, with the consequence that an order is made that part of the time that the applicant has served pending the hearing and his appeal will not count towards his sentence. See section 83W(1) of the Criminal Procedure Ordinance, Cap 221 and the Practice Note (Crime: Sentence: Loss of Time) [2013] 6 HKC 300.

56.The applicant was informed of the Court’s power to order loss of time by the Single Judge judgment of Macrae VP, and further reminded of it in the Form XII (Notice of Order of the Single Judge) and the Form XIII (Notice of Renewal of Application after Refusal by the Single Judge).

57.We invited the applicant to address us on whether loss of time should be ordered.  He simply maintained his complaint against his conviction of the two wounding offences.

58.We decided that in the circumstances of this case we should invoke the power under section 83W(1).  We noted that the Court had power to make a loss of time order even when the applicant was seeking an extension of time to apply for leave to appeal out of time.  See HKSAR v Okafor Charles Chukwuemeka, CACC 382/2015, 29 September 2017, unreported, at paragraph 33.

59.Our reasons for doing so were that the application for leave to appeal against conviction out of time was totally devoid of merit, that the applicant sought to question the evidential basis of his conviction by general commentary, focusing attention away from the cogent evidence that established he was the attacker, that Macrae VP gave detailed written reasons refusing the applicant leave to appeal against conviction (as well as against sentence) and explaining the lack of merit in his application, that by the reasons provided by Macrae VP, the applicant would have clearly understood and appreciated the futility of his application, and that the applicant was warned and reminded that if he renewed his application he ran the risk of a loss of time order being made against him.

60.We therefore ordered loss of time of two months.

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

The applicant appears in person