HKSAR v. Liang Chun Wai

CACC000182/1997

IN THE COURT OF APPEAL

1997, No. 182
(Criminal)

______________

______________

Coram: Hon. Power, V.-P., Mayo, J.A. and Stuart-Moore, J. in Court

Date of hearing: 28 October 1997

Date of delivery of judgment: 28 October 1997

______________

J U D G M E N T

______________

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

1. The Applicant who was D3 in the proceedings below pleaded guilty to two counts of assault occasioning actual bodily harm and one of criminal intimidation. He received a total of 34 months' imprisonment and now seeks leave to appeal against the sentences imposed.

2. All the charges arise out of a series of incidents which occurred on the 20th and 21st June 1996. According to the agreed facts the victim was told to go to The Tung Ying Fraternity Association at Tsuen Wan. He was met there by the Applicant's two co-defendants and later the Applicant himself and two other men arrived.

3. The Applicant accused the victim of informing the police of his drug trafficking activities. The Applicant and two of the other men thereupon assaulted the victim. He was hit in the face with a coin bag, kicked and hit with fists. The Applicant ordered him to the kneel on broken glass.

4. The party then moved to another room. The Applicant threatened to break two of the victim's fingers whereupon the victim agreed to pay $100,000 as 'compensation.'

5. The victim was detained while efforts were made to raise the money.

6. The victim called his brother on a mobile telephone asking him to assist in raising the money. The brother made a report to the police.

7. While the victim was being detained he was subjected to a further assault which included being hit with fists and being kicked.

8. The injuries to the victim included abrasions and a fracture of his nose.

9. The way that the sentencing Judge, Deputy Judge Wright approached sentencing the Applicant was to adopt a starting point of 18 months' imprisonment for the assault and 30 months' imprisonment for the criminal intimidation.

10. He was not prepared to grant the full 1/3 discount for the plea as this was only entered on the 1st day of the trial. He accordingly reduced the assault sentences to 13 months and criminal intimidation sentence to 22 months. The way the Judge ordered the sentences run was as follows:

"On each of charges one and five the Third Accused is to serve 13 months imprisonment. On charge three he is to serve 22 months imprisonment. Six months of the sentence on each of charges one and five are to be served consecutively to one another and consecutively to the sentence on the third charge, the aggregate sentence being 34 months imprisonment."

11. This would appear to be rather awkward and unsatisfactory matter of calculating the appropriate sentence. It did however achieve the end result of a total of 34 months' imprisonment and this took cognisance of the totality principle.

12. The 1st ground of appeal is that insufficient discount was given for the guilty pleas. The 1/3 discount is not intended to operate as a straight-jacket. The Judge gave his reason for the small reduction he made from the usual norm. We consider that he was entitled to do so.

13. Ground 2 is that the Judge declined to give the Applicant credit for good character having regard to his previous conviction for theft. The Judge should have treated him as being of good character having regard to the fact that his previous conviction had been spent. It is apparent that the Judge did not exercise his discretion correctly. However having regard to the serious nature of these offences good character was, in our view, not a matter to which any real weight should have been given.

14. The next three grounds complain the starting points adopted for these offences was too high and insufficient credit was given for the fact that all the charges arose after the same incident. While we would accept the sentences were at the higher end of the appropriate range we do not think they were excessive. As was pointed out by the Judge the incidents were separate and distinct and in any event sufficient credit was given to the Applicant when he applied the totality principle. Overall, these sentences were neither manifestly excessive nor wrong in principle and this application is accordingly dismissed.

Representation:

Mr. D.G. Saw, S.C. and Mr. Johnny Chan, G.C. (DPP) for Respondent

Mr. Selwyn Yu (DLA) for Applicant