HKSAR v. To Kar Kin

CACC000231/2000

CACC 231/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 231 OF 2000

(ON APPEAL FROM DCCC 238 OF 2000)

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Coram: Hon Stuart-Moore Ag CJHC, Mayo VP and Stock JA

Date of Hearing: 7 December 2000

Date of Judgment: 7 December 2000

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

1. On 29 May 2000, the Applicant (D4 at trial), aged 24, pleaded guilty in the District Court before Judge Wilson to a charge of assault occasioning actual bodily harm for which he was sentenced on 9 June 2000 to two years' imprisonment. He now seeks leave to appeal against his sentence.

2. The facts of the case were extremely unpleasant. The judge summarised the basic background in this way:

"In the early hours of 13 January last, the victim, a girl of 26 years, became unconscious after some drinks shared with a group which included D2 and D4. Later, she recovered consciousness and found herself in an unknown hotel and naked on a bed.

D4 was present and punched her on the head so that she became unconscious again (charge 3). When she awoke again, having no idea how much later, she finds herself still naked, and now tied up with her hands and feet tied behind her.

D2 is now present and tells her that nude photographs have been taken of her, and will be distributed unless $100,000 is paid (charge 2).

On the night of 14 January she is moved, under the escort of two men, and allowed to get her clothes from the nightclub where she worked. In the course of this, she managed surreptitiously to telephone someone, but asked him not to call the police. She also left a note for a girlfriend that she was in some kind of trouble. Then D2 and the other two men escorted her back to the hotel again.

Despite her request to the friend not to report to the police, somehow the police are indirectly notified. On 15 January, about 3 a.m., the police mount a raid to rescue the victim at the hotel, and find her in a room with a man guarding her. Some hours later D2 arrives in that room and is arrested.

Some days later D4 is arrested at a border crossing. The victim identifies D2 and D4 at identification parades.

It appears that the girl's whole ordeal lasted over 48 hours (charge 1) during some of which time she was restrained, tied up and naked, with her hands tied behind her. Afterwards she was medically examined and found to have bruises on her head and eyelid."

3. In this case, we are, of course, only concerned with D4 and the third charge. Having firstly considered D2, the judge then sentenced D4 in the following context:

"D4 is 24 years of age. He has six previous convictions, four of which are copyright matters, but one of which is for possession of drugs, and one of which is for grievous bodily harm for which he was sentenced to 21/4 years in 1996.

As he is still young I obtained background reports on him. These show that he is not suitable for the detention centre. They show that he comes from a good and caring family, and it is sad to have seen him go astray.

In all the circumstances it is a little difficult to see why the prosecution elected not to pursue the other charges against D4, but that is what has been done and I will take care to sentence him for assault occasioning actual bodily harm only. Nevertheless, the overall background to that assault must be considered. Although the injuries to the victim were not serious, D4 committed a nasty gratuitous assault upon her, in frightening circumstances when she was bound, and totally helpless.

Section 39 of Cap. 212 carries a maximum of 3 years only, and I select 3 years as the appropriate starting point, discount that by the usual one-third for the plea, and impose 2 years' imprisonment on D4 on charge 3."

4. Mr John Halley, on behalf of the Applicant, has submitted that the starting point of three years' imprisonment was too high and that it failed to take into consideration the mitigation which had been advanced for D4. He also argued that the judge had wrongly found that the victim was bound hand and foot at the time of the assault.

5. We can say straightaway that we find no validity in any of these submissions save the last. There was no mitigation of any weight to be taken into account. The judge referred to the one positive feature of the case when looked at from D4's point of view. This was that D4 came from a caring family despite his many transgressions. In the probation officer's report, which had been ordered before sentence, D4's stable family background was plainly set out. It also became apparent from the report that D4 had played his part in the offence for monetary gain.

6. The question for us is whether a three-year starting point was justified in D4's case. We have no doubt that it was. The female victim was helpless and was rendered once again unconscious by D4's blow to her head. The judge was wrong to have said that the victim was "bound" at the time this happened and, to that extent, counsel for D4 has a perfectly valid point. However, in the circumstances, this could have made no difference to the sentence imposed.

7. The application is dismissed.

Representation:

Mr R.G. Turnbull, SADPP, of the Department of Justice, for the Respondent.

Mr John Halley, instructed by Legal Aid Department, for the Applicant.