HKSAR v. Ta Dinh Son

HCMA884/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 884/2006

(ON APPEAL FROM ESCC 3542/2006)

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BETWEEN

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Coram:  Deputy High Court Judge Line in Court

Dates of Hearing:  2 November 2006

Date of Judgment:  2 November 2006

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J U D G M E N T

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1.This is an appeal against a sentence of 12 months’ imprisonment.  It was imposed for an offence of inflicting grievous bodily harm.

2.The offence occurred in Stanley Prison.  Three men attacked another prisoner.  He had a broken nose and damage to his eye, which affected his vision. 

3.The sentence was perfectly proper and mercifully the magistrate ordered that only 9 months of it run consecutively to the sentence that was then being served of 2 years and 9 months which had been imposed in November of 2005. 

4.In the court below the usual procedure was adopted whereby the brief facts were read out and agreed by the defendants.  Those brief facts related that the 1st defendant, not this appellant, had approached the victim’s table and punched his right eye with his fist and that the other two defendants, which included this appellant, then joined in and assaulted the victim.  The brief facts also related that at a subsequently held identification parade the victim and a witnessing CSD officer had both identified this appellant as being involved in the way described.

5.The appellant today appears before me and says that he would like his sentence reduced because he did not participate in the fighting, it was all down to the other two men.  He told me that he only pleaded guilty to the charge because he thought he would receive a sentence of 1 to 2 months’ imprisonment and that a CSD officer had told him to plead guilty to the charge and because he had been afraid that they would detain him longer in an isolation ward if he had not indicated he would plead guilty.

6.He then produced a letter to me, which he had written to the chief superintendent of the prison, the emphasis of which differed significantly, it seemed to me, from what he had told me, because this revealed that, contrary to the mitigation put forward below in the Magistrates’ Court, there was a distinct triad element to the wounding which had been deliberately carried out to protect a betting monopoly and that this appellant said he had been approached in order that he should plead guilty instead of the real perpetrators. 

7.In the letter he sets out that he was promised 40 packets of cigarettes for taking the responsibility for something he had not done and he agreed to their suggestion.  The letter goes on to describe being in the investigation unit and the appellant being told by a prison officer that the case may be referred to the police because the victim had been badly injured; that he therefore said to the person for whom he was covering up that he could not take the responsibility in those circumstances; that he was then offered an increase in the price to 120 packets of cigarettes in order falsely to take the blame; that he agreed to do so; and to date he had not received any cigarettes at all and that, feeling he had been cheated and after due consideration, was now going to tell the truth.

8.I regret to say, given that history, that those are assertions upon which I can place no weight.  The appellant was represented in the court below.  There was an unequivocal plea of guilty and nothing raised before me today has sufficient weight to it to make me doubt that it was a true plea of guilty voluntarily entered.

9.The sentence was quite proper and the appeal against it is dismissed.

Representation: 

Ms Grace Chan, Senior Government Counsel of the Department of Justice, for the Respondent (HKSAR)

Appellant: Ta Dinh-son (謝定山) (D2), in person