HKSAR v. Vaithilingam Sivaraj

CACC 290/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 290 OF 2009

(ON APPEAL FROM DCCC NO. 1231 OF 2008)

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BETWEEN

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Before: Hon Tang VP in Court

Date of Hearing: 9 December 2009

Date of Decision: 9 December 2009

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DECISION

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1.The applicant was sentenced for wounding with intent to 40 months’ imprisonment after being given the usual one-third discount for his plea. He now asks for leave to appeal against sentence out of time. He was sentenced on 1 June 2009. The application for leave to appeal out of time was only made on 4 September 2009. So it was more than 2 months out of time. His explanation for the delay is that there was nobody to help him, nor was anyone able to speak his language. But it is quite clear from his application dated 4 September 2009 that there was a Tamil interpreter available to help him. In any event, the usual practice when a person is sentenced is that he would be told by the Correctional Services of the possibility of an application for leave to appeal and the time within which it has to be done. So I am not satisfied that he has a reasonable excuse for the delay.

2.In any event, the offence was a serious one. The learned judge who sentenced him took note of the fact that it was the result of a drunken brawl. In giving him a sentence of 40 months which resulted from a starting point of 5 years, the judge had taken note of the injuries suffered by the victim, in particular he had looked at photograph no. 47 in the exhibit, showing the injuries which were done to the victim. Also the evidence showed that after the victim was operated on, he had spent some time in intensive care. Luckily, he does not seem to have suffered any permanent injuries. Authorities on wounding with intent show the sentence normally range from between 3 years and 12 years and that the Court of Appeal would not interfere with a sentenced passed by a trial judge unless it can be shown that it is clearly wrong. In a judgment which I gave in CACC 85/2005, unreported, 11 August 2005, I quoted:

“… The reason is obvious.  The facts are so infinitely variable that the sentence is one for the judge to assess in all the circumstances. …”  HKSAR v Au Kam-ming and Ors, CACC 531/1997.

3.This is not a case where it is reasonably arguable that the sentence was manifestly excessive.

4.The applicant has mentioned that his parents are sick, so is his son and asked for mercy. I am naturally sympathetic but I am afraid there is nothing that the court can do. The sentence as I have said, cannot be described as manifestly excessive.

5.For both the reasons that there is no good reason for the delay, as well as the fact that the appeal has no realistic chance of success, I must refuse this application.

6.I must remind the applicant, however, that he is entitled to have his application determined by the Court of Appeal. This is to say by a court with at least two judges. In order for that to happen, he has to make a fresh application within 14 days of today. However, I am also duty-bound to warn him and I warn the applicant that if the Court of Appeal when dealing with your fresh application, is of the view that it has no merit, it can order a loss of time that you have spent in custody to be taken away from the counting of the service of the term of imprisonment. The court can also increase his sentence.

Mr David Chan, SPP, of the Department of Justice, for the Respondent.

The Applicant, in person, present.