HKSAR v. Li Siu Yu

CACC000244/2000

CACC 244/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 244 OF 2000

(ON APPEAL FROM DCCC 272/2000)

____________

____________

Coram: Hon Wong JA, Keith JA and Hartmann J in Court

Date of Hearing: 9 August 2000

Date of Judgment: 9 August 2000

______________

J U D G M E N T

______________

Hon Hartmann J:

1. On 7 June of this year, before Deputy Judge Kelly in the District Court, the Applicant pleaded guilty to 3 offences. They were, first, wounding contrary to s. 19 of the Offences Against the Person Ordinance, Cap. 212. Second, possession of an offensive weapon in a public place, contrary to s. 33(1) of the Public Order Ordinance, Cap. 245. Third, remaining in Hong Kong without the Authority of the Director of Immigration after having landed here unlawfully, contrary to s. 38(1)(b) of the Immigration Ordinance, Cap. 115.

2. In respect of the 3 offences, the Judge sentenced the Applicant to a total of 3 years and 4 months' imprisonment. The Applicant has sought leave to appeal against that sentence on the ground essentially that it is too severe. He wishes to be released early and one of reasons given this morning is that he has a grandparent who requires his care.

3. The facts are simple enough. The Applicant entered Hong Kong unlawfully. On the night of 20 January of this year, in the Sham Shui Po area, he attracted the attention of a police officer who believed that the Applicant was acting suspiciously and was apparently concerned at what appeared to be a metal object protruding from the Applicant's trouser pocket. The officer stopped the Applicant, identified himself and attempted to seize the metal object which, on later examination, was found to be a knife. The Applicant resisted and a struggle ensued.

4. During the course of this struggle, the Applicant, who was also in possession of a screwdriver, took it out and used it to threaten the officer. This gave him time to flee. The officer pursued him. When the Applicant was caught, a second struggle took place. During this second struggle, the Applicant used his screwdriver to attack the officer, stabbing him 2 times in the thigh. It appears that the wounds sustained by the officer were essentially superficial, being described as stab wounds of 1 cm each. However, the summary of facts records that they required suturing. It was only when the officer took out his service revolver that the Applicant abandoned further resistance.

5. In respect of the wounding offence, the Judge was of the opinion that the seriousness of the circumstances dictated that, before matters of mitigation were taken into account, a sentence close to the maximum should be imposed. The maximum sentence for wounding contrary to s. 17 of the Ordinance is 3 years' imprisonment. The Judge took as his starting point a sentence of 2 years and 9 months' imprisonment. We do not see how he can be faulted for so doing. This was, of its kind, a most serious offence. The facts described earlier make that plain. The Applicant put up concerted resistance, inflicting 2 stab wounds on the police officer.

6. By reason of the Applicant's plea of guilty the sentence was reduced by one third to 1 year and 10 months' imprisonment.

7. In respect of the second offence; namely, possession of offensive weapons in a public place - the 2 weapons in question being the knife and the screwdriver - the Judge took into account that the maximum sentence was again 3 years' imprisonment and took as his starting point a sentence of 18 months' imprisonment. This again appears to us to be an entirely appropriate starting point. In light of the Applicant's plea of guilty, this sentence was reduced by one third to 12 months.

8. As the possession of the screwdriver was, of course, integral to the first offence, the Judge ordered that 6 months of this second sentence run concurrently with the 1 year and 10 months already imposed for that first offence.

9. In respect of the third offence; that is, remaining illegally in Hong Kong, the Judge took into account the fact that the Applicant had 3 previous convictions for the same offence. However, in light of the Applicant's plea of guilty, he assessed the appropriate sentence to be one of 18 months' imprisonment.

10. In so doing, it is evident that the Judge had regard to the sentencing guidelines laid down in R. v. So Man King and Others [1989] 1 HKLR 142 in which this Court held that, in respect of a first offender, on a plea of guilty and in the absence of special circumstances, a sentence of 15 months' imprisonment could be expected. This was, however, subject to the proviso that the sentencing court should take into account, by upward adjustment, any previous unlawful entry, whether resulting in prosecution or not, and other circumstances which may aggravate the offence. In the circumstances, we consider the imposition of the sentence of 18 months' imprisonment in this case to be appropriate.

11. In respect of this third offence, acknowledging the principle of totality and taking into account the relative youth of the Applicant, it was ordered that 6 months of the sentence run concurrently with the sentences already imposed.

12. It is apparent that the Judge was at all times anxious not to impose a sentence which, when weighed against the Applicant's moral culpability and his relative youth, would be judged too severe. It is apparent to us that the Judge made all allowances that he felt he could legitimately make. In the circumstances, we can find no reason to interfere with the sentence imposed. The Application for leave to appeal is therefore dismissed.

Representation:

Mr Graham D Goodman, SGC of the Department of Justice, for the Respondent

Applicant in person