HKSAR v. Dinh, Van-doung

HCMA93/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 93 OF 2006

(ON APPEAL FROM TMCC 4010 OF 2005)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 29 March 2006

Date of Judgment : 29 March 2006

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J U D G M E N T

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1.This is an appeal against sentence.  The appellant was convicted on his own plea of an offence of wounding, contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212.  He was sentenced to four months’ imprisonment, that sentence was to be served consecutively to his sentence of 20 years’ imprisonment for attempted murder that he was serving at the time of the present offence.  

2.The facts of the case were that the appellant and the victim were inmates at Shek Pik Prison.  The victim was having a shower, the appellant told him to hurry up as he did not wish to be late for lunch.  An argument ensued and the appellant punched the victim twice causing a laceration to the left side of the victim’s face of 2 cm in length as well as various abrasions. 

3.The magistrate adopted a starting point of sentence of six months’ imprisonment and reduced that to four months’ imprisonment as a result of the appellant’s plea of guilty.  The appellant now complains that sentence and the totality of sentence was too severe.  I disagree.  The appellant has six previous convictions, most of which are offences of violence.  Two of the previous offences took place while he was in custody for other offences.  He has therefore a history of violence, both generally and whilst in custody. 

4.In his Reasons for Sentence the magistrate said :

“6.   In sentencing I considered that it was essential that discipline be maintained in a custodial environment and that anyone who resorted to violence (whether provoked or not) should expect to receive a deterrent sentence.”

He later said :

“7.   Given the defendant’s 2 previous convictions for violence in a custodial setting it was clear that the defendant was a man predisposed to violence with a short fuse.  In the circumstances I considered the appropriate starting point to be one of 6 months imprisonment which I reduced to 4 months for the guilty plea.  I considered totality but concluded that this sentence should run wholly consecutive to the 20 year sentence he was serving.  …”

5.I respectfully agree with the magistrate’s comments.  The sentence of four months’ imprisonment after plea cannot be criticised and is appropriate given the previous history of the appellant.  Consecutive sentences were called for, the present offence being entirely separate from the offence the appellant is presently serving and being committed whilst the appellant was in custody for that offence. 

6.The appeal is dismissed.

Miss Sally Yam, GC of the Department of Justice, for HKSAR

Appellant in person, present