Read the full judgment text of CACC 125/2023 on BabelCite. This Court of Appeal judgment was delivered on 21 February 2024 before Zervos JA.
Criminal law – wounding – failing to surrender to custody – sentencing – guilty plea discount – absconding – gang attack with metal bars – consecutive sentences – appeal against sentence. The applicant, then aged 20, led a gang of three men armed with two-foot metal bars in a planned reprisal attack on the victim (PW1) outside a 7-Eleven store in Kai Tin Estate in the early hours of 11 March 2017, after a verbal altercation about his unwelcome approach to a female staff member. The blows were directed at PW1's head, causing a 4 cm scalp laceration, a right maxillary fracture, periorbital bruising, and a right subconjunctival haemorrhage, leaving him unable to get up from the ground. PW1 was hospitalised and given 7 days' sick leave with follow-up at maxillofacial and ophthalmology clinics. The applicant was arrested on 14 March 2017 and positively identified in an identification parade, but absconded after being granted bail and failed to attend a mention hearing on 19 July 2018. He was rearrested on 25 June 2022 at Hong Kong International Airport. On 20 June 2023, he pleaded guilty to wounding (Cap 212 s.19) and failing to surrender to custody (Cap 221 s.9L(1) and (3)) before District Court Judge Tam, who adopted a starting point of 32 months for the wounding and reduced the guilty plea discount to 25% per Lo Kam Fai, yielding 24 months, and 4 months consecutive for the absconding offence, totalling 28 months' imprisonment. On application for leave to appeal against sentence, the Court of Appeal (Zervos JA) dismissed the application. First issue: whether the judge erred in reducing the guilty plea discount from one-third to 25% for the wounding offence because the applicant absconded, and whether this amounted to double punishment. Held: no merit; per Lo Kam Fai and Poon Chum Kong, the discount is reduced to reflect the consequences of absconding (late plea, necessity of a second trial, wasted public resources), not to punish for absconding, and the separate consecutive sentence for failing to surrender addresses the distinct contemptuous breach of a promise to the court. Second issue: whether the sentence for the wounding offence was manifestly excessive. Held: no merit; per Ma Tik Lun Dicky and Chan Chun Tat, the offence warranted a starting point in the upper region given the planned gang nature of the attack, the use of metal bars, the blows directed at the head, and the serious injuries, all of which placed culpability near the top of the scale. Sentence of 28 months' imprisonment (24 months consecutive to 4 months) upheld. Applicant reminded of his right to renew his application and warned of possible loss of time consequences.
Legal issues: Reduction of guilty plea discount for absconding · Manifest excess in wounding sentence
Outcome: Application for leave to appeal against sentence refused.
Cited by 24 cases · Cites 3 cases