HKSAR v. Nguyen Van-phuong

CACC341/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.341 OF 2005

(ON APPEAL FROM DCCC 668 OF 2005)

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BETWEEN

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Before : Hon Stuart-Moore VP and Burrell J in Court

Date of Hearing : 9 March 2006

Date of Judgment : 9 March 2006

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J U D G M E N T

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Hon Burrell J (giving the judgment of the Court) :

1.In June 2003 the applicant was sentenced to 7½ years’ imprisonment for offences of robbery, assisting unauthorized entrants into Hong Kong and remaining in Hong Kong unlawfully.

2.On 5 April 2005 whilst in prison he committed an offence of wounding with intent, contrary to section 17 of the Offences against the Person Ordinance, Cap.212.

3.On 29 July 2005 he pleaded guilty to this offence and was sentenced to 2 years’ imprisonment of which 18 months was ordered to be served consecutively to the 7½ years he was serving at the time.

4.The applicant now seeks leave to appeal against the sentence of 2 years.  His counsel, Mr Phillip Ross, advances two grounds on his behalf.  Firstly, he submits that the starting point of three years for the section 17 offence was too high.  Secondly, he argues that less than 18 months should have been ordered to run consecutively.  He submits it should have been about 12 months.

5.The applicant’s attack was on a fellow prisoner.  He had sharpened a toothbrush and used it to stab the victim whilst he stood in line for a meal.  He stabbed him five times from behind, on the side of his head close to his right eye, on his shoulder and on his chest.

6.The stabs caused lacerations and scratches which were not deep but which drew blood.  The sentencing judge, Deputy District Judge Chainrai, noted a number of other features about the attack which caused her, rightly in our view, to regard the offence as “extremely serious”.

7.She noted that the victim was unarmed and had been attacked from behind.  The violence had been motivated by a grudge stemming from a trivial verbal exchange which had taken place the day before.  The revenge attack, she said, was disproportionate, premeditated and cowardly.  The fact that it occurred in a prison was another serious feature.

8.Mr Ross’s primary submission was that as the injuries were relatively superficial the starting point of three years was manifestly excessive.  We do not agree.  All offences contrary to section 17 of Cap.212 are serious because they all contain the ingredient that the offender intended to inflict really serious bodily injury at the time.  The fact that relatively minor wounds were in fact inflicted is of secondary significance.  Given all the other factors to which we have referred, the judge was correct to start at three years and reduce the sentence to two years because of his plea of guilty.  Ground 1 of this application is without merit.

9.In support of Ground 2 Mr Ross has referred us to authorities in which defendants who were in prison at the time of their offences were ordered to serve 50% of the sentence concurrently and 50% consecutively to the sentence being served.  No point of principle or guideline emerges from these examples.  They all depend on their own facts and the application of the totality principle to those facts.

10.When applying the totality principle, a number of factors may be weighed in the balance.  In the present case, the seriousness of the offence, the length of the first sentence and how much of it remains to be served are examples.  In some cases it would be entirely proper to make the second sentence entirely consecutive to the first.  We do not think that the judge in this case could have been criticized if she had chosen to do so.  We think her application of the totality principle was measured and proper and therefore the 2^nd ground of appeal must also fail.

11.The application for leave to appeal against sentence is dismissed.

Ms Mary Sin, SADPP, of Department of Justice, for the Respondent

Mr Phillip Ross, instructed by Messrs Krishnan & Tsang, for the Applicant