HKSAR v. Lau Pui Yee

CACC000407/1997

IN THE COURT OF APPEAL

1997, No.407
(Criminal)

______________

______________

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

Date of hearing: 31 October 1997

Date of judgment: 31 October 1997

______________

J U D G M E N T

______________

Power, V.-P. (giving the judgment of the Court):

1. In this matter there were multiple charges, eight in all. They involved assault, false imprisonment and robbery. The applicant, who was D1 of three defendants, was involved in only two of those offences - Charge 3, assault occasioning actual bodily harm, and Charge 4, false imprisonment.

2. Charge 3 was particularized as follows: that the applicant and the other two defendants on or about 31st August 1996 at Room 10, Block D, 8th floor, Pat Tat Mansion, 86-88 Parkes Street, Yaumati, assaulted Hung Sze-ngan, thereby occasioning her actual bodily harm. Charge 4 alleged that the same three persons on the same day at Kowloon in Hong Kong, together with another person unknown, unlawfully imprisoned the said Hung Sze-ngan and detained her against her will.

3. The applicant pleaded not guilty to both of the charges and was found guilty after trial before Judge Chung and was sentenced to one year on the 1st charge and two years on the 2nd and the sentences were ordered to be concurrent. She now seeks leave to appeal against those sentences. The other two defendants were dealt with by another judge.

4. The facts as set out by the trial judge were as follows. The female victim owed D1, and I shall refer to the applicant hereafter as D1, some money. On 30th August D2, who was a male, found the victim at her home. D1 and D3 also went to the victim's home shortly afterwards. The three defendants beat up the victim with fists and kicks for about half an hour. Later the victim was escorted by the defendants to a Karaoke nightclub in Yaumati. She was then taken into a room and beaten again by a number of people including D2 and D3. During this time the victim was threatened and forced to promise to pay $60,000. According to the victim she sustained injuries to her head, chest and back. According to the medical report she had swelling, bruising and haemorrhaging over her left periorbital region and the left eye, swelling over the parietal region of the head, left forehead, right elbow and right hand and both thighs and abrasion over the right para-nasal region.

5. He agreed with the observation of the Deputy Judge who sentenced D2 that this was a violent attack on the victim and stated that it had occurred over a prolonged period of time and involved a number of assailants. He was mindful that "the Court of Appeal has on many occasions pointed out that it is a prevalent crime in Hong Kong for people to employ violent means such as assaults and threats against victims in order to demand repayment of money. For this reason, it is appropriate and necessary to sentence offenders to deterrent sentences."

6. The judge then went on to refer to the maximum sentence that could be imposed on each of the two charges - three years on the first charge and seven years on the second charge. He went on:

Having considered the whole circumstances of this case (including the Defence submissions and the report relating to D1), I do not think that there is any reason for not imposing a deterrent sentence against D1. Therefore, insofar as D1 is concerned, I consider the following to be the respective appropriate starting points:

(a) 1 1/2 years' imprisonment for Charge 3;

(b) 2 1/2 years' imprisonment for Charge 4.

As D1 did not have any previous criminal record, I consider that she should be entitled to a reduction of 6 months' imprisonment for each of the 2 offences. Further, Charges 3 and 4 belong to one and the same transaction, their sentences should therefore run concurrently with each other. D1 will therefore have to serve an overall sentence of 2 years' imprisonment."

7. One aspect this court is being asked to take into account the applicant's "young age and clear record", her personal circumstances as revealed in the probation report, the "minor role" which it is suggested she played in the offence and the sentences which were imposed on the other two offenders. It is suggested that the prime mover was D2. We do not accept this submission. The applicant was clearly the prime mover as she was the creditor and it was she who set in motion the events which followed.

8. It is submitted by Mr. Mitchell-Heggs, who appears for the applicant, that D2 was sent to a training centre which was a lenient sentence and that D1 should be entitled to expect at least similar leniency given her role. We reject this submission. This court has said on a number of occasions that a lenient sentence passed by another judge on an offender involved in the same set of offences provides no justification for appellate interference with a proper sentence imposed on another offender. We are, moreover, by no means satisfied that an unduly lenient sentence was passed upon the 2nd defendant. He was 18 years of age at the time, he was incited to commit the offence by D1 and he gave evidence against the other offenders. It was very much a matter for that trial judge to determine whether the interests of the offender and of society generally indicated that detention in a training centre was a proper order.

9. What we must have in mind are the circumstances applicable to D1. She was 24 years of age at the time of the offence. She was the instigator. Given that the matter did get out of hand she made no attempt to bring it to a halt. Those were the matters which the sentencing judge had to bear in mind. We have no doubt that he did take them all into consideration. The sentence, although perhaps at the top of the range, was neither the manifestly excessive or wrong in principle.

10. The application for leave to appeal against it must, therefore, be refused.

Representation:

Mr. Alain Sham (D.P.P.) for the Respondent.

Mr. Anthony B. Mitchell-Heggs & Mr. Tam Hon Yeung, Rodney instructed by Messrs.Gary Mak & Co. for the Applicant.