HKSAR v. Mar Pak Chong

CAC C 426/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 426 OF 2010

(ON APPEAL FROM DCCC NO. 1256 OF 2009)

________________________

BETWEEN

________________________

Before: Hon Hartmann JA in Court

Date of Hearing: 1 April 2011

Date of Handing Down Judgment: 1 April 2011

________________________

________________________

Hon Hartmann JA (giving the judgment of the Court):

1.This is an application for leave to appeal against conviction and sentence. The applicant at the time of sentence was in his early 70s. He was charged with two counts of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212.

2.The prosecution case was to the effect that on 28 August 2009 the applicant who was seemingly angry at the way he had been treated by a solicitor went to the offices of the solicitor armed with a knife.  He attacked the solicitor’s receptionist, stabbing her several times and requiring her of a laceration.  He also stabbed the solicitor himself requiring his lacerations. 

3.The applicant today says that he was betrayed by the solicitors firm.  He informs me that he went to seek help from the solicitors firm here in Hong Kong because he had been cheated out of approximately a million US dollars by two companies in the United States which, he says, were bets by organised crimes.  He says that he was betrayed by the solicitor who passed on information to relevant parties so that they would be able to destroy evidence and or deal with the applicant himself.

4.The prosecution case was to the effect that the applicant asked the solicitor to make a public announcement concerning press and other things on behalf of the applicant so that the applicant could then in the hope that the shares of these two companies would fall short sell the shares and thereby make back the money, he says, he had lost.  It was the prosecution case that the solicitor informed the applicant that he was not in a position to do that because that would be illicit in Hong Kong in the commission of an offence namely some form of insider trading or market manipulation.  It was the prosecution case that being aggrieved by this decision of the solicitor the applicant came to the office with a knife and committed the two wounding.

5.The applicant, this morning, complains first that he was held for over a year before coming to trial.  This, he says, is unconstitutional.  Whatever the law is in the United States of America there is no specific constitutional provision in Hong Kong nor any specific statutory provision in Hong Kong to the effect that a person must be brought to trial within a specific period of time.  Every case will depend on its circumstances and if there is undue delay on the part of the prosecuting authority that may give grounds for a stay of application.  And it will then be for the court to determine, having regarded all the circumstances, whether the ends of justice demand that there be a stay.  In the present case there was clearly a lengthy period of time but it was not excessively lengthy.  It has to be borne in mind that both major prosecution witnesses were seriously injured and they themselves took time to recover before they could give evidence in addition to which it was the available medical opinion that the applicant himself required assistance. 

6.On this basis while I do not say that the applicant could not put forward an argument of undue delay I think that the likelihood of that argument being successful in the Court of Appeal more especially that it was not raised below is extremely unlikely.

7.The applicant also speaks of being betrayed and is not getting a fair trial.

8.I have looked at the relevant documents concerning the trial and it seems to me that all relevant assistance was given to the applicant.  The evidence was overwhelming.  There was not only the evidence of the receptionist who was stabbed.  There was also the evidence of the solicitor who was stabbed.  There was evidence too from an employee of a next door business.  The receptionist ran to that business covered in blood seeking assistance and that person protected her.  So that the evidences were very strong.  In the circumstances I do not see that there is any real likelihood of an application being successful.  

9.I can well appreciate that the applicant now in his 70s and is apparently having been his only offence to frustrate the fact that he should still be held albeit under a one-year hospital order only and not in prison in terms of any sentence of imprisonment.  The hospital law was given on psychiatrist’s advice not a one psychiatrist but more than one and was given on the basis that this gentleman is not well and that he requires treatment and care so that he will then be in a position to go back into society.  What is being done therefore is for his own benefit.  It is not punitive.  There is no punishment as said here. 

10.He says that he is not a threat to the society.  Regrettably history shows us that from time to time when persons do go through difficult times emotionally they can become a danger to the society and the fact that they are in their 70s simply alter the nature of the danger.  The fact that the applicant in this case is aged 72 still manages two seriously wounds to two people.  In the circumstances the application must be refused. 

Mr Frederick Chung, SPP of the Department of Justice for the Respondent

Applicant in person, present