HKSAR v. Gurung Hemant

CACC332/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 332 OF 2005

(ON APPEAL FROM DCCC NO. 285 (PART C) & 665 OF 2005)

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BETWEEN

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Before : Hon Ma CJHC & Stock JA in Court

Date of Hearing :   21 April 2006

Date of Judgment :    21 April 2006

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J U D G M E N T

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Hon Ma CJHC (giving the judgment of the Court) :

1.The Applicant applies today for leave to appeal against sentence on a charge of wounding with intent contrary to section 17(a) of the Offences Against the Person Ordinance, Cap.212.  After pleading guilty before H H Judge Chua on 12 July 2005, he was sentenced to 4 years’ imprisonment (the Judge having adopted a starting point of 6 years).

2.The Summary of Facts states that on 2 January 2005, the victim of the assault, a Nepalese man, went to a discotheque on Lockhart Road with some friends.  There, as he was dancing, a number of persons including the Applicant surrounded him.  The Applicant stood in front of the victim and used a knife with a 16-inch blade to chop him twice on the head.  As the victim retreated, another person chopped him in the elbow.  When the victim looked up at the Applicant, he raised his hand to chop him again.  After that, the victim was chopped by another person at the left armpit.

3.The injuries sustained by the victim were serious.  He was admitted to hospital in a coma.  He sustained multiple chop wounds over the head, left chest wall, left scapular region and left elbow.  The blows were struck with such force that the skull and elbow were fractured.  The cut to the elbow required nerve repair.  There appears to be some degree of permanent disability but not much.  The Judge, however, said this : -

“From the blows that he suffered it is a matter of sheer luck that he has escaped with little permanent injury.”

4.Before us, the Applicant’s counsel, Mr Phillip Ross, has advanced two points : -

(1)        It is submitted that the starting point of 6 years was too high, although not manifestly so, therefore making a sentence of 4 years imposed after plea excessive.  He referred us to a number of previous decisions in which lighter sentences were passed.  He has emphasized the fact that there was little permanent injury in the present case.

(2)        He relies on the death of the Applicant’s father as a factor in mitigation.  It would appear that as a consequence of the Applicant’s imprisonment, his father became so upset that he took to drinking heavily.  He was admitted to hospital in Tuen Mun on 30 August 2005 and was discharged two weeks later so that he could return to Nepal to be looked after by the Applicant’s brothers.  Soon after his return, the Applicant’s father died.  Prior to his being imprisoned, the Applicant had lived with his parents together with his wife and children.

5.Forcefully though these points have been made, we are of the view that the sentence imposed on the Applicant was neither manifestly excessive nor wrong in principle : -

(1)    As has frequently been said in relation to this offence, there are no guidelines for sentence owing to the wide range of circumstances in which it can be committed.  The court is therefore required to look at the relevant facts of each case.  In HKSAR v Tse Hok Lam [2005] 3 HKLRD 18, it was said that the range of sentence for this offence was 3 to 12 years (albeit that the maximum sentence is life imprisonment).   The fact of permanent injury or disability to the victim is no doubt a relevant factor (as Mr Ross has submitted) but its absence hardly constitutes any form of mitigation nor can it be a factor in reducing an otherwise appropriate sentence.  In the present case, the attack on the victim was brutal and premeditated.  Knives with 16-inch blades were used to chop the victim.  The victim was attacked by a gang.  The Judge said this when sentencing the Applicant : -

“They knew where to find PW1 [the victim] and brought these terrifying knives with them with which to inflict serious injury.  There was no conversation.  They surrounded him and struck at him viciously.  There was no mercy.  When he was down the attack continued.”

Taking these facts into account and the injuries sustained by the victim, we are of the view that the Judge did not err in her approach.  As we have mentioned earlier, Mr Ross said that the starting point was high but accepted that it was not manifestly so.  The Judge also mentioned in her Reasons for Sentence that there was a deterrent element in sentencing for this offence.  The Judge was right to do so : see Archbold Hong Kong 2005 at paragraph 20-221.

(2)     On the second ground of appeal, the Applicant has relied on two affirmations (one from himself, the other from a family friend) attesting to the fact that the health of the Applicant’s father deteriorated quite dramatically following his conviction.  He began to miss meals and started to drink heavily.  As the Applicant could not continue to look after his parents, his friend arranged at his own expense for them to return to Nepal to be cared for by the Applicant’s brothers.  As stated above, the Applicant’s father passed away on 20 September 2005 on his return to Nepal.  He had died from a heart attack.  All this is tragic but is not a factor that can go to the reduction of sentence.  Mr Ross has referred us to AG v Ling Kar Fai (No 2) [1997] 2 HKC 651 (a decision of this court) for the proposition that in considering the appropriate sentence, the court can take into account the ill health of a relative and the impact of this on the accused.  We agree that in certain special circumstances, this may be a relevant factor.  Ling Kar Fai provides an example : there, the ill health of the defendant’s wife was taken into account as part of the distress the defendant in that case went through as a result of a delay in his prosecution.  However, generally, in cases where the ill health of a close relative is sought to be relied on as some sort of mitigation in that the accused has been unduly affected, the court have, rightly in our view, not allowed this factor to be taken into account.  In the present instance of course, as Mr Ross has reminded us this morning, the consequence of the Applicant’s conviction was tragic in that his father died.  We can put it no better than to paraphrase and adapt the words of Nazareth VP in R v Wong Wai-lun, unreported, CACC512/1996, 7 March 1997 : - those who are concerned about the welfare of their parents or family should avoid getting involved in this sort of offence in the first place.

6.For these reasons, the application is dismissed.

Mr Phillip Ross, instructed by Messrs Jal N Kharbari & Co for the Applicant

Mr Tam Sze Lok of the Department of Justice for the Respondent