HKSAR v. Nguyen Manh Hung and Another

HCMA001264/2003

HCMA 1264/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1264 OF 2003

(ON APPEAL FROM TMCC 1758/2003)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 24 March 2004

Date of Judgment: 24 March 2004

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J U D G M E N T

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1.Those Appellants were jointly charged with two counts of wounding, contrary to section 19 of the Offence against the Persons Ordinance, Cap. 212 and they are appealing against both convictions and sentence.

2.They are husband and wife and prior to the trial because of their exhibited incoherence and inability to focus on the proceedings four psychiatric reports were called for and prepared on 16 June 2003. No psychotic disorders were detected and all four psychiatrists concluded that both Appellants understood the charges and proceedings. So, the trial began on 24 November last year.

3.The facts were not complicated. It arose from an incident when two employees of the Royal Danish Consulate General went to see the Appellants at the Immigration Searching Room, at the Hong Kong International Airport. This visit was at the request of both Appellants. Both Appellants wanted to make an application to PW1, to withdraw their refugee status in Denmark. PW1 then said she explained to the Defendants that they would have to sign certain documentary declarations before they could withdraw their refugee status. Unfortunately during this time, the 1st Appellant suddenly attacked PW1 with a hard object, she was not sure whether it was a pen or a walkie-talkie and it was also the evidence of PW1 that the 1st Appellant repeatedly kicked and punched her, causing her head, neck, nose and knees to suffer laceration, bruises and fractures. At that time, the second prosecution witness tried to hold the 1st Appellant from behind and tried to prevent him from further assaulting the first prosecution witness. At that point, the 2nd Appellant started to attack PW2 with her slippers and a hard object causing lacerations on the head of PW2, his face and left ear suffered tenderness. Upon seeing this happening, the third prosecution witness, an Immigration officer, tried to restrain the 1st Appellant unsuccessfully, so he shouted out for help and subsequently more immigration officers arrived and they subdued both Appellants. Subsequently, the PW1 and PW2 were medically treated and both of them required suturing.

4.After the prosecution witness had given evidence, both Appellants elected to give evidence, the evidence of 1st Appellant was that he and his wife deliberately brought two pens and a baby bottle with them to use them in order to assault others so that they can be repatriated back to Vietnam. The 1st Appellant apparently in court had said that if he had been in Beijing, larger objects would have been used.

5.The 2nd Appellant gave evidence that she and her husband had been in Denmark and Beijing before coming to Hong Kong and she felt that the Danish government was wrong to hold them and the Danish government should send them and their three children back to Vietnam. She was frustrated because the government had declined their requests for repatriation and treated them as refugees and she felt that they were persecuted. She resented being called a mental patient by the Danish government and she feared that she would be locked up in the mental hospital if she went back to Denmark. She believed that the Danish government wanted to murder them and so on that day of the arrest, they had brought along two pens, a pair of shoes and a baby bottle to defend themselves. She subsequently admitted that she did use a walkie-talkie to attack PW2 and that the 1st Appellant had only used the baby bottle to assault PW1.

6.The learned Magistrate in assessing the evidence had referred to the clear records of both Appellants and bore in mind the fact that they were representing themselves and also that the defence was that it was lawful self-defence and thus the onus was on the prosecution to disprove it.

7.After the learned Magistrate had assessed the evidence, he accepted the evidence of PW1 and PW2 as reliable and truthful. At the end of the day, he accepted that the wounding of both prosecution witnesses was a joint enterprise and therefore he convicted both Appellants.

8.After considering the facts in this case and the lack of remorse in this case he considered that a sentence of 9 months' imprisonment was appropriate.

9.Both Appellants represent themselves in this appeal. Both Appellants in their submissions had resorted to rhetoric and again emphasised that they were victims of a murder plot by the Danish government together with the Hong Kong authority. After many warnings by this court that this court is not prepared to listen to any rhetoric and that this court is only concerned with the grounds of their appeal in this case. They still continued to pepper their submissions with rhetoric. Upon a consideration of what they actually said it would appear that both Appellants are repeating what they said in the Magistracy, i.e. that the 1st Appellant denied he had used a walkie-talkie to hit, he had only used a bottle and he claimed that the learned Magistrate did not allow them to ask questions nor allow them to talk.

10.I can only say that judging from their performances this morning before me, it is little wonder that the learned Magistrate had to restrain them in asking question and the 2nd Appellant's ground of appeal would appear to be that the Magistrate did not allow them to defend themselves. She said that PW1's evidence was questionable because she claimed she was frightened but then in a letter to them she had said that she was glad to meet them. She claimed that it was unfair of PW1 to try to force them to sign documents without giving them time to read these documents. The learned Magistrate was wrong not to take into account what had happened before the attack. She said that it was at the insistence of PW1 that they signed the documents before they can be repatriated. She admitted that they had two pens and a baby bottle with them. PW1 wanted to run away at one stage but then was stopped from doing so by her husband and then her husband used the milk bottle to hit the head of PW1 and then PW2 hit her husband's chest and in trying to defend her husband, she said she threw slippers and subsequently used the walkie-talkie to hit PW2's head.

11.Both of them criticised the learned Magistrate for accepting the evidence of the prosecution witnesses. To put it succinctly, the learned Magistrate had very clearly set out at p. 23 of the appeal bundle at paragraph 6 of his Statement of Findings, the reason why he accepted the evidence of the prosecution witnesses. In fact, the prosecution witnesses' evidence about the attack was basically supported by the evidence of both Appellants. As to the suggestion of murder by the Appellants, the learned Magistrate had found was too "flimsy".

12.The learned Magistrate found that both Appellants had brought along the baby bottle and pens because they had agreed to intend to inflict wounds on the Danish Consulate representative. He found that both Appellants were acting in concert.

13.I have read the learned Magistrate's Statement of Findings, and for a simple case like this, he did go into great detail the evidence, his reasoning and the law in this case and at the end of the day, he was left in no doubt that both Appellants were guilty as charged. I cannot find any error that had been made by the learned Magistrate in coming to his conclusion. I therefore find that there are no sufficient grounds at all to upset the learned Magistrate's conviction.

14.Now in relation to sentence, both Appellants had submitted that they considered that the sentences on both of them were too high, the learned Magistrate in his Reasons for Sentence p. 24 of the appeal bundle had stated out clearly the background of both Appellants. He accepted that both have clear records and accepted that both Appellants must have been feeling grave frustration because three of their children were in the care of the Danish government. But this was an unprovoked but premeditated attack on the two prosecution witness. The injuries caused the victim's murder to require suturing and what the learned Magistrate observed was very apt because he said these two victims were in fact not responsible for causing the Appellant's frustration, they were merely employees of the Danish Consulate in Hong Kong and the Appellants had shown no remorse whatsoever and still had shown no remorse up to today.

15.It is clear from the Appellants' conduct in this appeal that they had no respect whatsoever for the laws of Hong Kong and that they do not feel that they had committed any crime whatsoever, because the frustration of the victims justifiably paid for their frustration. This cannot be condoned, this type of conduct has to be punished and the learned Magistrate had rightfully sentenced them to a period of 9 months' imprisonment.

16.So, I see no grounds at all in this appeal against sentence and so the appeal against sentence for both Appellants are dismissed.

Representation:

Mr David Leung Cheuk-yin, SGC of the Department of Justice, for the Respondent

The 1st and 2nd Appellants in person