R. v. Nguyen Van Hiep
|
CACC000664/1996 IN THE COURT OF APPEAL 1996, No. 664 (Criminal) _______________
_______________ Coram: Hon Litton V.-P. and Mayo J.A. in Court Date of hearing: 5 March 1997 Date of judgment: 5 March 1997 _______________ J U D G M E N T _______________ Litton V-P giving the judgment of the Court: 1. This is an application for leave to appeal against sentence. 2. The applicant Nguyen Van-hiep was sentenced to six years' imprisonment after trial in the District Court. The applicant was one of three Vietnamese inmates at Shek Pik Prison charged with wounding another inmate on 17 May 1996. The charge was laid under s17(a) of the Offences Against the Person Ordinance, Cap 212. 3. It was a premeditated attack by the three defendants, two of whom were armed with weapons. The victim was severely injured. The judge found that, but for the intervention of the Correctional Services officers, the victim might easily have been killed. 4. The sentencing took place on 15 November 1996 in the District Court. At that time the applicant was serving a 30 years' sentence: commuted by His Excellency the Governor from a death sentence for murder. The death sentence was passed after trial in early 1990. The judge in sentencing the applicant ordered that the six years' sentence for the wounding should be served consecutively to the 30 years' term. 5. Counsel Mr Forrest argues that this is wrong in principle. He draws attention to the fact that a co-accused who was then serving a life sentence for another crime had his six years' sentence ordered to be served concurrently. This was because the judge felt constrained by authority to so order. 6. The applicant's complaint in essence is this: There is a glaring discrepancy between the result as far as he was concerned as compared with the position of the co-accused. 7. The judge however was aware of this dilemma: To pass a sentence on this applicant in the same manner as he had done with the co-accused, making the six years' concurrent with the 30 years he was then serving, was to have imposed no punishment at all. 8. Counsel suggests that there was another solution open to the judge: This was to have made the six years' sentence partly concurrent. Counsel also draws attention to the fact that the judge, in passing sentence on this applicant, had made no reference to the totality principle: Had the judge borne this principle in mind he might well have ordered that part of the six years' sentence should be served concurrently with the 30 years' term. 9. The applicant was, at the date of conviction, aged 34: With good conduct he still has a prospect of some meaningful life outside prison on the termination of his punishment. An additional six years therefore is, counsel suggests, a considerable punishment for this applicant. We agree with counsel's submissions. 10. Taking this application as the hearing of the appeal we discharge the sentence passed by the judge, to this extent: The six years' sentence is affirmed, but the first three years of that is to be served concurrently with the 30 years' term.
Representation: Mr M A rthur, SCC (Crown Prosecutor) for Crown/Respondent Mr Robert Forrest (DLA) for the Applicant |