HKSAR v. Lui Kwok

CACC174/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 174 OF 2008

(ON APPEAL FROM DCCC NO. 1225 of 2007)

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BETWEEN

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Before: Hon Stock JA and Wright J

Date of Hearing: 12 February 2009

Date of Judgment: 12 February 2009

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JUDGMENT

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Hon Wright J giving the judgment of the court:

1.The applicant was convicted on 28 April 2008, after trial in the District Court, by Judge Remedios of a single charge of wounding with intent to do grievous bodily harm, pursuant to the provisions of s. 17(a) of the Offences Against the Person Ordinance, Cap. 212.  He was sentenced to imprisonment for 7 years. The maximum penalty prescribed by the section is imprisonment for life. He applies for leave to appeal the sentence.

2.The applicant owed money to the person wounded by him, to whom the judge referred in her judgment as PW1.  Only they gave evidence at trial.  The judge dealt in detail with the conflicting versions propounded by them: she accepted the evidence of the wounded man and rejected that of the applicant.  The judge found that there had been a heated exchange over the telephone between the wounded person and the applicant, consequent upon which the wounded person and a friend went by taxi to the vicinity of the applicant’s residence. She accepted that this was because the applicant had invited the wounded person there on the pretext of making payment.  Once he and his companion arrived they were assaulted.

3.The judge related the evidence she accepted in these terms:

“9.  When they went past the entrance to the park PW1 saw that 10 odd persons dashed towards them from behind.

10.  PW1 recognized a few of them amongst the group.  The defendant was in the lead:  he had a knife with him between 2 feet and 3 feet long. He also recognized a few persons behind the defendant.  They were friends of the defendant.  ...

11.  The defendant shouted out "Chop the mother fucker."  When PW1 saw the defendant and other persons coming towards him he ran towards A Kung Ngam Village Rd.  PW2 ran in another direction.  The defendant pursued PW2.

12.  While being chased PW1 fell onto the ground.  The group had caught up with him.  After he fell to the ground the whole group kicked him on his body.  After kicking for a period of time they stopped.

13.  After they had stopped kicking PW1, PW1 saw that Mau Chai chopped his right upper arm once.  PW1 then felt another chopping once on his abdomen.  He did not see who did that.  At that time he was still on the ground.  He was in much pain and his arm and abdomen were bleeding.

14.  The attack then stopped for a while.  They were surrounding him at a distance of about 3 feet.  PW1 looked at them.  PW1 saw the defendant walking towards him.  The defendant then approached him whilst he was lying on the road in pain and said to him "Play acting?"  The defendant then chopped PW1 once on his right hip with a knife of some 2 - 3 feet long...."

4.The records of the subsequent examination of the wounded person at the Pamela Youde Nethersole Eastern Hospital related that he had sustained superficial facial and abdominal wounds, a compound fracture of the right humerus which was treated with open reduction and internal fixation, a fracture of the right greater trochanter and a right hip wound which was explored and sutured.  Those injuries eloquently illustrate the considerable force which must have been applied in striking the blow.  He was hospitalized for 11 days and was on sick leave for some three months.

5.The attack occurred in the early hours of 25 June 1997. The applicant fled Hong Kong to the Mainland where he remained for some 10 years before returning to Hong Kong.  He did not return to surrender himself but remained at large until April 2007 when he was, according to him, apprehended in respect of another matter. He was identified by the wounded person at an identity parade in May 2007.

6.In sentencing the applicant the judge said:

"2. &nbspI found on the evidence this to be a well-planned, premeditated attack on the victim by you.  This was a gang attack of about 10 persons against the lone victim the majority of whom were armed with weapons, which included knives and baseball bats.  I found that you were the leader of this group and that at the time you were carrying a machete-like knife of about 3 feet long.  I found on the evidence before me that you had initiated the attack on the victim and led the group of comrades to attack him.  This was a savage and brutal attack on PW1 who suffered multiple chop wounds by dangerous, lethal weapons.  It is perhaps most fortunate that PW1 did not suffer any permanent injuries, but he was left with several unsightly scars.

3.  PW1 was lying on the ground, already suffering from multiple chop wounds and was bleeding profusely, yet when you came up to him you could not have not seen that he was bleeding and in pain, you, in an arrogant manner and bullying manner, asked him if he was play acting.  Then you proceeded with your vicious attack with this lethal weapon, chopping him once on his hip.  Your act is one of a brutal, callous, nasty person."

7.We agree, without hesitation, with her observations. It was plain from the evidence which the judge accepted that the applicant’s expressed intention to make payment was nothing more than a ruse to lure his creditor to the area where he was set upon by some 10 persons armed with vicious weapons.  It is equally plain that it was the applicant who had arranged for those persons to ambush the wounded person and his friend.  The applicant's conduct, in chasing the other man with a view to assaulting him and then returning to the point where the wounded person had already been assaulted and was lying on the ground, bleeding, surrounded by a group of his assailants, was monstrous.

8.The applicant initially sought leave to appeal conviction.  In his home-made grounds of appeal, dated 16 May 2008, he persisted in the defence which he had run at trial which had been rejected by the judge, namely that he had heard the sounds of a fracas from his house, looked out and seen that his own friends already had assaulted the wounded person: he had then gone to assist that person.  That application was abandoned on 17 October 2008.

9.In an undated letter, apparently subsequent to the abandonment, the applicant sought to "... change [his] plea of not guilty to guilty".  He lamented having missed his wife, who had divorced him, and his family during the 10 years he was in hiding in the Mainland.  In a later undated letter he referred to lesser sentences which had been imposed in two other matters, one tried in the District Court and one tried in the High Court.  He also pointed out that two of the assailants whom he had organized to assault the wounded person had been convicted after trial and each sentenced to six years imprisonment. 

10.In yet another letter, dated 2 November 2008, he expressed himself as dissatisfied with the adoption of the starting point of seven years, the maximum jurisdiction of the District Court.  He went on to say, despite the profession of contrition contained in his first undated letter, that he had been unaware that the wounded person would come to his residence and that the situation arose suddenly and without premeditation.  It is quite plain that the applicant will say whatever it is he perceives, at any given time, as advancing his cause. He shows not the slightest hint of remorse.

11.The imposition of lighter sentences in different trials is not a matter which avails the applicant.  The question is whether the sentence imposed on him for the offence which he committed was appropriate.

12.The judge was fully alive to the fact that two of the other assailants had been sentenced to six years imprisonment.  They appealed the sentences.  The applications were dismissed, the Court of Appeal observing that they were not a day too long.  The judge differentiated between the applicant and the other assailants, identifying the applicant as "... the leader and had organized all your fellow comrades to inflict the injuries... [he was] the leader and initiator of this group.  [He] had in fact held the knife... and organized this brutal, vicious attack and despite all these years [has] shown no remorse whatsoever." That was an entirely appropriate course for the judge to adopt.

13.Although the judge did take a starting point at the limit of her jurisdiction, the facts of this matter and the applicant's conduct were such that that was a proper course for her to follow.

14.This application is devoid of merit and it is dismissed. Every day of this sentence was deserved.

Stock JA:

15.We have heard representations from the applicant in relation to our powers pursuant to s. 83W of the Criminal Procedure Ordinance as to whether we should order that part of the time spent in custody pending the determination of the appeal shall not be recognized as part of the sentence to which the applicant is, for time being, subject. The judgment which has been delivered indicated that we are of the view that the application is entirely devoid of merit. We are of the opinion that we should exercise our powers under that section.

16.Accordingly, we order that 2 months of the period already served by the applicant pending the determination of this application, shall not be recognized as part of the sentence to which he is, for the time being, subject.

Ms Grace Chan, Senior Public Prosecutor, Department of Justice, for the respondent

Applicant in person