HKSAR v. Ho Yuk Wun

CACC 76/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 76 OF 2005

(ON APPEAL FROM DCCC NO. 1222 OF 2004)

----------------------

BETWEEN

--------------------

Before : Hon Stock JA and Gall J in Court

Dates of Hearing : 30 June 2005

Date of Judgment : 30 June 2005

----------------------

J U D G M E N T

----------------------

Hon Stock JA (giving the judgment of the Court):

1.This is a renewal of an application for leave to appeal against sentence, leave having already been refused by the single judge.  The applicant pleaded guilty in the District Court to two offences: the first that on 26 January 2004 inside a reception office at Stanley Prison he unlawfully and maliciously wounded a Chief Superintendent with intent to do him grievous bodily harm contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212; the second an offence of assaulting another officer in the same place on the same day, occasioning him actual bodily harm.

2.This applicant has a singularly appalling criminal record including offences of robbery, wounding with intent to do grievous bodily harm, and possession of imitation firearms and is currently serving a very long term of imprisonment at Stanley Prison.  On the day in question a number of Justices of the Peace visited the prison in the execution of their duties, and the applicant asked for an interview with them.  That was arranged and the applicant was taken to a reception room for that purpose.  Inside that reception room were the Justices of the Peace and a number of prison officers.

3.When the applicant arrived at the interview room, he threw white powder onto the face of the victim named in the second charge and then dashed towards the Chief Superintendent whom he attacked, causing the Chief Superintendent to sustain injuries on his scalp and his hand.  The allegation was – and this allegation was disputed by the applicant – that the attack was occasioned with a sharpened aluminium bar.  There was a struggle and a number of the other officers, including the officer named in the second charge, were injured.  The white powder to which we have made reference was thought to be a powder commonly used in construction materials and to have come from the wall of the applicant’s prison cell.  After these events, the applicant wrote a letter to the ICAC in which he complained that he had been ill treated by the Superintendent and the attack which he launched was, he said, a revenge attack for that mistreatment.

4.Although the applicant pleaded guilty to both offences, he denied that he was armed with the aluminium bar when he went to the cell.  He said that it happened to be in the cell and simply came to hand as it fell from an envelope on the Superintendent’s desk.  The judge, Judge Line, was not prepared to accept this mitigation on its face and accordingly a Newton hearing was held, at the end of which the judge rejected the mitigation saying;

“I have no hesitation in rejecting your claim.  It was convincingly denied by the chief superintendent.  The idea that he perjured himself to make matters worse for you when you are in so much trouble already is not to be realistically countenanced.  The claim’s nature is fanciful, depending on the coincidence of your planned attack and the chance appearance of a homemade weapon which left its envelope in the interview room and fell to your hand after you had commenced your violence.  I am sure you organised the knife meaning to use it in the way you did.”

At this stage the proceedings in the court below were interrupted because of the applicant’s conduct in court, and he was removed from the court.  In his absence, the judge continued:

“I did not forget that he was searched and the knife was not found and that he was a category Super A prisoner, subject to the strictest security.  The ingenuity and cunning of prisoners is such that the point raised no reasonable doubt in my mind as to my finding.

However, I need say little more about the Newton Inquiry as it lost the greater part of its significance when the defendant conceded that he had a settled intention all along to stab the chief superintendent, but claimed that the weapon was to be a ballpoint pen which was confiscated prior to his entry to the interview room.  The concession had to come to explain what he had written to the ICAC after the event, to the effect that he had formed an intention to stab the chief superintendent before the day on which he did so.  The issue thus narrowed to the choice of weapon and became peripheral as, of course, a ballpoint pen in vicious hands can cause as much damage as a sharpened bar.  I did not believe his answer that he never considered the eyes as a possible target for a ballpoint pen stabbing.”

5.The judge accorded a twenty-five per cent discount from the starting point on account of the plea of guilty – less than the normal one-third because of the Newton inquiry and its result and that, in our judgment, was perfectly appropriate.  He took a starting point of five and a half years’ imprisonment for the malicious wounding charge, and fifteen months’ imprisonment for the assault charge; sentencing the applicant to four years’ imprisonment on the first charge and ten months on the second, ordering six months in relation to the second charge to run consecutively to the four years in relation to the first; making a total of four years six months’ imprisonment.  It is clear from the judge’s remarks that he regarded the fact of a long record of crimes of violence as an aggravating feature.  He ordered the current sentences to run consecutively to the sentences which the applicant was already serving in Stanley Prison.

6.The applicant appears before us unrepresented and in his grounds of appeal he complains that the Newton hearing was not conducted fairly; that the judge should not have believed the Chief Superintendent; and that he, the applicant, ought to have been allowed to describe his persecution and torture at the hands of the Superintendent.

7.We have also heard the applicant this morning making oral submissions to us.  We see nothing in the applicant’s complaints and the sentences imposed were entirely appropriate.  Accordingly, this application for leave to appeal against sentences dismissed.

Mr Gary Lam, SGC of Department of Justice, for HKSAR

The Applicant in person, present