HKSAR v. Ma Lap Kau

CACC000675/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.675
(Criminal)

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Coram: Power, V.-P., Mayo and Stuart-Moore, JJ.A.

Date of Hearing: 24 March 1998

Date of Judgment: 24 March 1998

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J U D G M E N T

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Stuart-Moore J.A. (giving the judgment of the Court):

1. On 29th October 1997, this Applicant was convicted of wounding with intent following his plea of guilty in the District Court before Judge Sweeney. He now appeals against the sentence of three years and four months' imprisonment which was imposed.

2. Enough of the facts appear from the sentencing remarks of the judge, taken together with the fact that the Applicant and his victim were both convicted prisoners serving their sentences at Pik Uk Prison. The judge said this:

"The defendant has pleaded guilty to an offence of wounding with intent to cause grievous bodily harm. That was a sensible plea of guilty indeed and an inevitable plea. As was clear from the facts of this case, the defendant carefully planned how to cause maximum injury to his victim in spite of the non-availability of weapons in prison. I have been shown the small piece of timber seized from the defendant after this attack. Clearly it is too small to be of any use as an all-purpose weapon and it could only cause real damage if aimed at vulnerable parts of the body which is exactly how the defendant used it in this instance.

On his behalf, Mr. Clarke has informed me that the dispute arose out of the debt of some 10 packets of cigarettes. I find it appalling that such a seemingly trivial matter could lead to such dire and permanent consequences for the victim, albeit I do appreciate that a currency of cigarettes will assume far greater significance to a prisoner, especially one who is an illegal immigrant. The victim's right eye has been damaged to the extent that it can only detect light in some directions. I am not sure what the technical definition or medical definition of blindness is but I can see very little difference in this case as the victim's right eye is of no practical use in everyday life. This attack did not arise in the heat of the moment but was carefully planned."

3. The judge then went on to take a five year starting point for the offence.

4. Although the defendant was caught red-handed, he was nevertheless very properly given a one-third discount for his plea of guilty.

5. The Applicant's grounds of appeal in effect complain that the facts that were placed before the court were inaccurate. In particular, he complains that his side of the story was left out. According to the Applicant, the truth of the matter is that he has been punished when it was the victim who was largely responsible for what occurred by having deceived the Applicant in the prison.

6. We have read the Applicant's lengthy grounds and we find that there is no merit whatsoever in any of them. We do not agree that the Applicant was unfairly treated. His case was properly presented to the court. This was a dreadful crime where the Applicant, by a deliberate act, has blinded a fellow prisoner in one eye. The starting point was entirely appropriate. We do not propose in those circumstances to interfere with the sentence that gave full credit for the plea of guilty.

7. The application is dismissed as being wholly unmeritorious and, for that reason, we propose to order that three months of the period the Applicant has already served in prison shall not be reckoned as part of the sentence. This has the effect that the sentence the Applicant will serve will now be longer.

Representation:

Mr. B.M. Ryan, S.A.D.P.P. for D.P.P./Respondent.

Applicant in person.