HKSAR v. Mach Sindy

CACC 198/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 198 OF 2004

(ON APPEAL FROM HCCC NO. 216 of 2003)

____________________

BETWEEN

____________________

Before:   Hon Stuart-Moore VP, Stock JA and Burrell J

Date of Hearing: 21 February 2006

Date of Judgment: 21 February 2006

______________________

J U D G M E N T

______________________

Stuart-Moore, VP (giving the judgment of the Court):

1.The facts have been set out in sufficient detail in the judgment (CACC 198/2004) we handed down on 1 February 2006 when we quashed the appellant’s conviction for murder and substituted a conviction for assault occasioning actual bodily harm.  It suffices to say at this stage that it was the appellant (D2 at trial) who was the instigator of a series of assaults upon the deceased who at no stage offered any resistance.  The appellant not only gave encouragement to D1 and D3 at various stages during the assaults when they attacked the deceased with fists, with feet and with blunt weapons in the form of a metal pipe and a metal broom handle, she also physically participated on at least two occasions.  However, the main attack, which proved to be fatal, appears to have occurred some hours after the appellant had gone to sleep in her room.

2.It is apparent that the appellant’s responsibility was confined to assaulting the deceased thereby occasioning him actual bodily harm.  The indictment could have been drawn to include at least two such counts.  Had this been done the court would have had greater scope for imposing a sentence which reflects the seriousness of the crime.  The stages at which the appellant physically participated are clearly defined in her confession statement.

3.As it is, the maximum sentence for this offence is 3 years’ imprisonment as provided by section 39 of the Offences against the Person Ordinance, Cap. 212.  We cannot find any mitigation beyond the fact that a plea of guilty to assault occasioning actual bodily harm was offered at the second pre-trial review, well before the start of the trial.  This was rejected by the prosecution but defence counsel, in his final speech, invited the jury to convict the appellant of assault occasioning actual bodily harm as an alternative to murder.

4.Accordingly, giving the appellant the usual discount of a third for what we shall, in these circumstances, regard as her plea of guilty, she is sentenced to 2 years’ imprisonment.

Mr Alain Sham, SADPP, of the Department of Justice, for the Respondent.

Mr Gary Plowman, SC, instructed by Messrs Cheung, Chan & Chung (assigned by Director of Legal Aid), for the Appellant (D2)