HKSAR v. Li Cheng Hong and Others

CACC 408/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 408 OF 2010 (ON APPEAL FROM DCCC 410 OF 2010) _______________________ BETWEEN HKSAR Respondent AND LI CHENG HONG（李承洪） 1st Applicant (1st Defendant) LAM KAM KONG（林錦江） 2nd Applicant (2nd Defendant) WONG CHUNG LIM（黃宗廉） 3rd Applicant (3rd Defendant) WANG MAN TAO（王文濤） 4th Applicant (4th Defendant)
	GURUNG RAJENDRA BIKRAM	5th Applicant (6th Defendant)

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Before: Hon Stock VP, Yeung VP and D. Pang J

Date of Hearing: 8 November 2011

Date of Judgment: 8 November 2011

Date of Handing Down Reasons for Judgment: 2 December 2011

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REASONS FOR JUDGMENT

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Hon Yeung VP (giving the reasons for judgment of the Court):

Introduction

1.In December 1997, an arson attack with the use of three petrol bombs took place at the Top One Karaoke in Prat Avenue, Tsimshatsui, killing 17 people.  Lau Ying Tat (“OK Tat”), one of the attackers, was subsequently convicted of murder and sentenced to life imprisonment.

2.Choi Kam Fai (“Choi”), the alleged mastermind of the attack, fled to the Mainland and was only apprehended in Shenzhen in December 2008.  “Choi” was sent back to Hong Kong to stand trial for the murder of the 17 people and “OK Tat” was scheduled to give evidence against him as a prosecution witness.

3.“OK Tat” was detained in Unit 5, a Category A cell in Stanley Prison, which is a maximum security prison.  Detained in Unit 5 were other inmates who had been sentenced to life or long-term imprisonments for murder or other serious offences.

4.The inmates in Unit 5 included members of two rival groups.  “OK Tat”, Chan Ka Chun (“Ka Chun”), Hau King Yeung (“Cheung Mo”), Lee Wai Man (“Hoi Sin”), Lam Chi Kwong (“Chi Kwong”) and Chan Wai Man (“Muk Chuen”), belonged to one group (“the witness group”) and the other group included Li Cheng-hong, alias “Sze-chuan” (D1), Lam Kam-kong, alias “Pei Tan” (D2), Wong Chung-lim, alias “Ah Lim” (D3), Wang Man-tao, alias “Ah Tao” (D4), Kwai Ping-hung, alias “Kwai Suk” (D5), and Gurung Rajendra Bikram (D6) (“the defendant group”). 

5.On 28 March 2009, in the morning, all 30 inmates in Unit 5 were released from their individual cells into the recreational hall on the ground floor.  Normally they were allowed outside to exercise but because it was raining they were kept indoors and there were two CSD officers, AO 4308 and AOII 5690 on duty, supervising them.  At about 8.30 a.m., there was a commotion between the defendant group and the witness group.

6.It was the prosecution case that the commotion was the result of an attack on “Hoi Sin” and “OK Tat” by the defendant group.

7.The prosecution alleged that the attack was part of the attempt to discourage/deter “OK Tat” from giving evidence against “Choi”, and that D1 and D2 attacked “Hoi Sin” whereas D3, D4 and D6 attacked “OK Tat”.  As a result of the attack, “Hoi Sin” and “OK Tat” suffered quite serious injuries.

8.It was the prosecution case that prior to the attack, namely on 24 March 2009, D2 and D3 approached “Ka Chun”, asking him to persuade “OK Tat” not to testify against “Choi”.  Two days later on 26 March 2009, D3 and D5 approached “Cheung Mo” and told him that there would be trouble for “OK Tat” if he testified against “Choi”.  D5 also asked “Cheung Mo” if he knew of any way to prevent “OK Tat” from testifying against “Choi”.

9.The aforesaid incidents led to an indictment consisting of three charges against the defendants and they appeared before Judge D Yau in the District Court for trial.

The Charges

10.The 1^st charge of conspiracy to pervert the course of public justice alleged that D2, D3 and D5 had conspired to pervert the course of public justice by inciting or inducing “OK Tat” not to testify against “Choi”.  The 2^nd and 3^rd charges of assaulting occasioning actual bodily harm alleged respectively that D1 and D2 had assaulted “Hoi Sin” and that D3, D4 and D6 had assaulted “OK Tat” on 28 March 2009.

11.D1 and D2 pleaded guilty to the 2^nd charge and were each sentenced to 10 months’ imprisonment additional to the sentences they were already serving.  The other defendants pleaded not guilty to charges 1 and 3.

12.D2, D3 and D5 were acquitted of the 1^st charge, but D3, D4 and D6 were convicted of the 3^rd charge and were each sentenced to 15 months’ imprisonment additional to the sentences they were already serving.

The applications

13.D1 and D2, both unrepresented, sought leave to appeal against sentence.  D3, D4 and D6, separately represented by Mr Richard Donald, Mr Cheung Kam-wing, Adonis, and Mr John Marray, sought leave to appeal against both conviction and sentence.

14.At the end of the hearing, we dismissed the application of D1 and D2, but allowed that of D3, D4 and D6.  Treating the application as the appeal proper, we allowed the appeal of D3, D4 and D6.  We quashed their conviction on charge 3 and set aside their sentence.  We indicated that we would hand down our reasons in due course and this we now do.

The Prosecution Evidence

On the 1^st charge

15.The main witness of the 1^st charge was “Ka Chun” who gave evidence to the effect that on 24 March 2009 when he was working in the Master’s Room of Unit 5, he was approached by D2 and D3 who sought his help to persuade “OK Tat” not to testify against “Choi”.  D2 and D3 told “Ka Chun” that if “OK Tat” should refuse to co-operate, D3 would give him several thousand dollars to stab “OK Tat”.  “Ka Chun” said he was unable to recall the time of the conversation or if the “Master” was in the room during the conversation.

16.“Ka Chun” said he then went to the washroom where he saw D5 who also asked him for a favour, namely to prevent “OK Tat” to give evidence in order to “give face” to some Mainland triads.  “Ka Chun” said he was not sure if there was anyone else in the washroom.  He said he only mentioned the event to the CSD staff when he was put in solitary confinement for taking part in the commotion on 28 March 2009.

17.“Cheung Mo” also suggested that he was approached by D3 and D5 on 26 March 2009 at a table outside the Master’s Room of Unit 5.  According to “Cheung Mo”, D3 suggested that as he was friendly with “OK Tat”, he must be aware that “OK Tat” was going to give evidence against “Choi”.  When “Cheung Mo’ denied knowing things about “OK Tat”, D3 told him not to pretend and D5 also told him to persuade “OK Tat” not to appear in court to testify against “Choi”.

18.D5 further warned “Cheung Mo” not to be too close to “OK Tat” as “one would not get any benefit by sticking so close to betrayers in prison”.  “Cheung Mo’ said he did not tell anyone about the conversation that he had with D3 and D5.

19.The evidence of the CSD staff did not support the evidence of “Ka Chun” and “Cheung Mo”.  The “Master” did not recall the incident on 24 March 2009 and suggested that if it did happen in the manner as “Ka Chun” described, he would have noticed the conversation.  According to the evidence of the CSD staff, “Ka Chun” was in fact not authorized to work in the Master’s Room on 24 March 2009.

20.The evidence of other CSD staff contradicted the evidence of “Ka Chun” that he was able to have the conversation with D2 and D3 in the washroom on 24 March 2009.  Their evidence also contradicted “Cheung Mo”s’ evidence that he was able to have the conversation with D3 and D5 on 26 March 2009.

On the 3^rd charge

21.The alleged victim of the 3^rd charge, “OK Tat”, in his evidence, said that when he was reading letters at about 8.45 am on 28 March 2009, he suddenly felt a great pain on the right side of his head.  He said it was someone hitting him on his head, but he did not see or know who did it.  He said he then saw D4 rushing over, trying to hit him, but was stopped by “Chi Kwong”, and they then struggled with one another.

22.“OK Tat” said D4 did succeed in punching his mouth once to cause bleeding. Then, according to “OK Tat”, “Cheung Mo” assisted him to fend off the people and as it was very chaotic, he was unable to see who actually wanted to hit him.

23.“OK Tat” also said D3 had rushed towards him, holding a long bench and he tried to use another long bench to hit against it, resulting in both benches falling to the floor. He then immediately retreated into the toilet and no one chased him.  “OK Tat” suffered a 1.5 cm laceration to his right ear, abrasions on his upper lip and left leg as a result of the attack on him.

24.Apart from “OK Tat”, other members of the witness group as well as AO 4308 Wan Chi Leung and AOII 5690 Po Hing Chuen gave evidence for the prosecution.

25.According to “Ka Chun”, at 8.45 am on 28 March 2009 when he was watching television in the recreational hall, he heard a big bang.  He turned around and saw D3 and D6 attacking “OK Tat” with their fists.  When he tried to stop D6, D6 hit him and they pushed and knocked each other.  D6 managed to break free and was going towards “OK Tat”, “Ka Chun” embraced him from behind and was then attacked by D4 and D5.  He saw “OK Tat” being attacked and one of the attackers was D3 who was holding a long bench to hit “OK Tat”, although he was unable to say if D3 succeeded in doing so.

26.“Ka Chun” said he himself took up a long bench in order to separate D3 and “OK Tat”, but D3 succeeded in fending it off his hand.  He said he was then assaulted by D3, D4 and D5 in turn.  “Ka Chun” was able to pick out D6 from a CCTV footage, which showed that D6 was kicking someone.

27.“Ka Chun” agreed that it was very chaotic as there were many people running and moving around.

28.“Cheung Mo” was in the washroom when he heard the noise of the commotion.  He went to the recreational hall and saw many people chasing around.  He said “OK Tat” had his back against the wall and D4 was facing him, and they each had a stool.  “Cheung Mo” said he tried to mediate and told them not to fight, but D3 told him “not to take notice”.  According to “Cheung Mo”, D5 and D6 then kicked him on his head for about 10 times before the arrival of CSD officers.

29.“Chi Kwong” said he saw D6 used his fist to hit “OK Tat”’s head once.  When he tried to separate them, D6 punched him, once on his eye and once on his mouth.  “Chi Kwong” said his glasses dropped and he fell to the floor and when he got up he saw D4 rushed over to hit “OK Tat”.  When he tried to separate them, D4 hit him on his chest and he fell to the floor again. “Chi Kwong” confirmed that the situation was very chaotic and there were many people.  He then saw “OK Tat” holding a long bench, fending off people.

30.“Muk Chuen” also said he saw D6 suddenly rushed over to “OK Tat” and kicked him in his belly once.  He tried to help “OK Tat”, but was himself punched by D6 on the nose.  His glasses dropped and he fell to the floor when he saw D3 and another inmate (Cheung Yuk Keung) rushed over.  He felt that his head and nose were hit for several minutes and he covered his head and face to protect himself.

31.AO 4308 said it was peaceful until he saw the attack on “Hoi Sin” and tried to intervene.  He then heard a commotion from behind and witnessed two groups of around 10 peoples hitting each other, but was unable to say “who fought whom” as it was chaotic.  He was able to say one group, including D2, D3, D5, D6 and Cheung Yuk Keung, was fighting with the other group including “Cheung Mo”, OK Tat”, “Chi Kwong”, “Ka Chun” and “Muk Chuen”.  AO 4308 also said he then saw D1 and D2 tried to hit “OK Tat”, “Cheung Mo” and “Chi Kwong”, but he was not sure how.  He said he did not feel “OK Tat” being hit by anyone and the commotion lasted only about 3 minutes.

32.AOII 5690 gave similar evidence as AO 4308.  He was able to witness the assault on “Hoi Sin” by D1 and D2, but was unable to say, as between the defendant group and the witness group, “who was fighting whom”.  He said there were 10 inmates pushing and knocking against each other and they included D3, D4, D5, D6, Cheung Yuk Keung, “Cheung Mo”, “OK Tat”, “Muk Chuen”, “Chi Kwong” and “Ka Chun”.  AOII 5690 said he could not see who was punching and knocking whom, just “somebody pushed and somebody dodged” because it was very chaotic.  The commotion lasted about two minutes and the two groups were separated when reinforcement arrived.

The Defence

33.None of the defendants gave or called any evidence.  Their positions were that the prosecution was unable to prove the charges against them.  The defence suggested that “OK Tat” was actually running an illegal bookmaking business on soccer matches and “Ka Chun”, “Cheung Mo”, “Muk Chuen” and another inmate (Lee Wai-man) were assisting him.

34.The defence further suggested that the real reason for the fight related to gambling debts and that the witness group, rather than the defendant group, were the aggressors.  The defence denied any attempt to prevent “OK Tat” from giving evidence against “Choi”.

The Judge’s approach

35.The judge found the evidence of “Ka Chun” and “Cheung Mo” in relation to the incidents on 24^th, 25^th and 26^th March 2009 irreconcilable with those of the CSD staff.

36.The judge said he did “have serious doubts about the credibility of “Ka Chun” and “Cheung Mo” in relation to charge 1, but nevertheless took the view that they were not lying about the assault on “OK Tat”.

37.As the judge was unable to find beyond a reasonable doubt that the conversations supporting the 1^st charge had taken place, the judge found the 1^st charge against D2, D3 and D5 not proved.

38.In relation to the 3^rd charge, the judge pointed out that as the CSD officers were more concerned about their own safety and that of the inmates rather than with the identification of who was hitting whom, it was not surprising that they were unable to recall the exact details of the fight between the two groups of inmates, particularly when the situation was chaotic.

39.The judge concluded that what was left was the evidence of the inmates on the details of the attack, which he said was not inconsistent with evidence of the CSD officers.

40.Despite the discrepancies in their evidence, the judge concluded that the evidence of “OK Tat” and other members of the witness group on the 3^rd charge, including that of “Ka Chun” and “Cheung Mo”, was credible.

41.The judge, based on their evidence, concluded that the fight started when D6 hit “OK Tat” on the head, followed by D4 who hit “OK Tat” on the mouth to cause bleeding.  The judge further found that when “Chi Kwong” tried to help “OK Tat”, he was hit by D6 and then D4 on the chest.  The judge also found that D3 rushed towards “OK Tat” holding a long bench which clashed with that of “OK Tat” and “Ka Chun” witnessed it before “OK Tat” withdrew to the washroom.

42.Then “Ka Chun” also picked up a bench intending to separate D3 from “OK Tat”, but D3 used his bench to strike at “Ka Chun”’s bench.  It was then D4 and D5 went up to hit “Ka Chun” with fists, and they were also joined in by D3 when “Ka Chun” was already bleeding.

43.The judge also found that when “Cheung Mo” tried to calm down D4, D5 went to hit him on his eye once causing him to retreat and fall near the water cooler.  Then D5 and D6 went up to hit “Cheung Mo” on his head for about 10 times.  The judge further found that when “Muk Chuen” saw D6 kicking “OK Tat” in his belly, he rushed up to help and was punched by D6 on the nose causing him to fall.  Then D3 and Cheung Yuk Keung also came up to attack “Muk Chuen”, grabbing his hair and hitting his face.

44.The judge took the view that the CCTV footage was consistent with the evidence of the prosecution witness, portraying them as being attacked by the defendant group.

45.The judge took into consideration the medical evidence relating to the injuries of members of the witness group and concluded that their injuries were consistent with and supported their evidence, particularly when D3, D4, D5 and D6 had suffered less serious injuries, many of which were in fact consistent with their using fists to punch others.

46.The judge rejected any suggestion of self-defence and concluded that D3, D4 and D6 were the attackers.  On that basis, the judge convicted D3, D4 and D6 of the 3^rd charge.

Grounds of Appeal

47.The grounds of appeal put forward by Mr Richard Donald for D3, Mr Cheung Kam-wing, Adonis for D4 and Mr John Marray for D6 were similar, if not identical.

48.They all complained that the judge should not have relied on the evidence of “OK Tat”, and members of the witness group to find the 3^rd charge proved.  They pointed out the discrepancies in the evidence of “OK Tat” and other members of the witness group to demonstrate that they were not reliable witnesses.

49.Counsel for the applicants emphasized that the situation was chaotic and confusing.  In particular, they pointed out that the evidence of AO 4308 and AOII 5690, who were independent witnesses and were in a position to observe the commotion right from the start, did not support the prosecution case when their evidence was that it was two groups hitting and chasing each other, and that the fight continued for only about three minutes after their initial intervention during which they did not see “OK Tat” being assaulted by anyone.

50.Counsel referred us to the evidence of individual witnesses and pointed out the fallacy of those evidence.  It was emphasized that the commotion in question was just a fight between two rival groups in prison and it was wrong to put the blame on one of the groups.

51.Mr Cheung and Mr Marray further emphasized that in connection with the 1^st charge, the judge “had serious doubt about the credibility of the inmate prosecution witnesses” and it would therefore be wrong for the judge to rely on the evidence of some of those witnesses to find the 3^rd charge proved.

52.Mr Cheung raised separate complaints about the lack of corroborative evidence and the way the judge dealt with the “self-defence” issue.

Discussion

53.We do not find it necessary to deal with, individually and separately, the grounds of appeal raised by different counsel for the applicants.

54.Whatever was the cause, the defendant group and the witness group belonged to two different factions in a high security prison and there was clearly a bitter and fierce rivalry between them.

55.“OK Tat” and other members of the witness group were not impartial witnesses and their evidence must be viewed with circumspection.  It would be easy and perhaps natural for “OK Tat” and members of the witness group to put the blame on the defendant group.

56.Whoever was the initiator, it did not appear to be one group attacking the other group as such.  Even on the evidence of members of the witness group, they had participated in the commotion although they would describe their participation as attempts to resist the attack by the other group or to help “OK Tat”.

57.The commotion appeared to have started with D1 and D2 assaulting “Hoi Sin”.  It was unlikely that after that initial attack, members of the witness group would remain inactive to allow the defendant group to attack them again.

58.The CCTV footage showed that D1 and D2 attacked “Hoi Sin”, but it did not show the defendant group attacking “OK Tat” at all.  It was wrong to assume, just because D1 and D2 attacked “Hoi Sin”, that members of the defendant group were the attackers whereas members of the witness group were the “victims”.  Contrary to the judge’s view, we did not agree that the CCTV footage assisted the prosecution on the 3^rd charge.

59.“OK Tat” admitted that in the course of the commotion, he had taken up a long bench to resist the attack by D3 and “Cheung Mo’ had assisted him to fend out the attack.  “Ka Chun” also admitted that he had tried to assist “OK Tat” and he also took up a long bench “in order to separate D3 and ‘OK Tat’”.  “Ka Chun” did not witness D4 attacking “OK Tat”.

60.According to “Cheung Mo”, when he first noticed the commotion, he saw “OK Tat” and D4 facing one other, each holding a stool and he tried to mediate.

61.The commotion was witnessed by two CSD officers whose evidence did not support the prosecution case that it was the defendant group who attacked the witness group.  The evidence of both officers confirmed that it was chaotic and there were basically two groups of people pushing and knocking against each other.  AO 4308 said he did not feel that “OK Tat” was being hit by anyone.

62.Whilst the CSD officers had to face a dangerous situation and that their primary concern was their own safety and that of the inmates, they were trained officers whose duties was to maintain order and discipline within the prison.  If there had been an attack by the defendant group against “OK Tat”, the CSD officers should be able to witness it.

63.The judge clearly came to the conclusion that the evidence of the CSD officers did not support the prosecution case although he also said their evidence was not inconsistent with the evidence of the “inmate prosecution witnesses”.

64.Having concluded that the evidence of the CSD officers did not support the prosecution case, the judge then said: “We are therefore left with the evidence of the inmate prosecution witnesses as to the details of the attack.”

65.Whilst the judge said he did not expressly find that “Ka Chun” and “Cheng Mo” were lying in connection with the 1^st charge, his findings in relation to their evidence seem to suggest otherwise.  The judge did not find it possible to reconcile the evidence of “Ka Chun” and “Cheung Mo” with that of the CSD officers on the 1^st charge and on the evidence of the CSD officers, the events described by “Ka Chun” and “Cheung Mo” simply could not have happened.

66.There was no room for mistake or misunderstanding and if the CSD officers were telling the truth, “Ka Chun” and “Cheung Mo” must be lying.

67.Apart from the irreconcilable difference between their evidence and that of the CSD officers, the judge found that “Ka Chun” must have lied when he said he had complained to the CSD staff about the conversations he had with D2, D3 and D5.

68.The judge expressed surprise at the work status of “OK Tat” when he did not really have to do anything, but had time to sit around, to read newspapers and to lend his newspapers to others to read.

69.The judge pointed out the evidence of “Cheung Mo” that he did not tell anyone about the conversation he had with D3 and D5, yet according to “OK Tat”, “Cheung Mo” actually warned him to be careful as D3 and D5 would do him harm if he were to appear in court.

70.The judge clearly was not sure that “Ka Chun” and “Cheung Mo” were telling the truth in their evidence on the 1^st charge and it would not be safe to rely on their evidence as the basis for conviction on the 3^rd charge when their evidence related basically to the same incident.

71.If the judge had doubt about the credibility of “Ka Chun” and “Cheung Mo”, it would not be right to convict a defendant on their evidence.

72.Whilst the injuries of members of the witness group were more consistent with them being attacked, that fact on its own does not resolve the misgivings we have to which we have referred.

73.In all the circumstances of the case, we were of the view that the convictions upon the 3^rd charge against D3, D4 and D6 were unsafe.  We therefore granted leave to them to appeal against conviction.  Treating the application as the appeal proper, we allowed the appeal.  We quashed their conviction on the 3^rd charge and set aside their sentence on that charge.

D1 and D2’s application for leave to appeal against sentence

74.D1 and D2 punched “Hoi Sin” on his head several times and after he fell to the ground, they continued to kick his head and body several times.  What they did to “Hoi Sin” was captured by the CCTV.  The judge described the attack as “quite savage” and opined that “it is amazing that (‘Hoi Sin’) did not suffer more serious injuries”.  The judge considered it an aggravating factor that the assault took place inside a maximum security prison.

75.D1 is 42.  He has four previous convictions with two for wounding with intent.  D1 is serving 14 years and 8 months’ imprisonment for robbery and wounding with intent imposed on 30 May 2008.

76.D1 suggested that he was only assisting D2 when D2 fought with “Hoi Sin” as a result of a heated argument.  He said it was only an ordinary case of fighting without the use of any tool and there was no damage done to either party.  D1 emphasized that he had pleaded guilty at the first opportunity and he felt that the 10-month additional sentence was too heavy when in other cases of a similar nature the sentence was only 4 to 6 months.

77.D1 also said he was a “lesser participant” who was trying to help a friend and he did not know the cause of the fight.  He emphasized that the charge against him related only to “Hoi Sin”, yet the judge, in his reasons for sentence, referred to the background and injuries of other witnesses.  D1 said the judge’s approach was not fair.  D1 also complained about the judge’s description of the attack on “Hoi Sin” as extremely savage when there was no weapon used and when “Hoi Sin”’s injuries were minor and non-permanent.

78.D1 also said as a prisoner coming from the Mainland, he had encountered problems in languages and living habits.  He said his family members had not been able to visit him due to immigration control and their financial conditions.  D1 claimed that he would strive to reform himself and asked for a shorter term so that he could reunion with his family members, make contribution to the society and care for his aged parents.

79.D2 is also 42.  He has 14 previous convictions, mostly relating to Dangerous Drug and dishonesty.  D2 is serving 26 years’ imprisonment for trafficking in a dangerous drug imposed on 19 September 2001.

80.D2 complained that the judge had referred to the background relating to the other charges.  He emphasized that he had not used any weapon and that the injuries on “Hoi Sin” did not justify the judge’s view that the attack on him was savage.

81.D2 pointed out that he had pleaded guilty at the start and had not wasted the time of the court, which indicated that he was not a violent person.  D2 claimed to be a “fresh offender” and suggested that the additional 10 months’ imprisonment was too heavy.  D2 referred a number of similar cases to support his contention.

82.D2 also complained that the judge had not taken into consideration the principle of totality when he was already serving 26 years’ imprisonment at the time of the offence.

83.D2 said he had been punished and that he knew what he did was wrong.  He claimed that his behavior since the incident was good and he asked for a chance to return home earlier, saying that his 11-year-old son missed him and lamented the lack of physical contact with him.

Discussion

84.Prison is a place to punish convicted people and to allow them the opportunity to reform themselves.  It is a place where order and discipline should and must be obeyed and observed.  The job of CSD staff will be made very difficult if inmates were not deterred from taking part in attacking one another.  The judge was right to say that it was an aggravating factor when the assault took place inside a prison.

85.A defendant who commits serious acts of violence whist in prison must expect an additional sentence.  In R v Azzopardi & Others [1996] 1 Cr App R(S) 124, Lord Taylor C.J. said at p 127:

“Miss M suggests that the appropriate course in relation to this applicant who was only 21 at the time and is now 26, to avoid an excessively long period of incarceration, would have been to make his sentence concurrent to the sentence he was already serving.

We wish to make a general statement about that proposition.  Where serious offences are committed in prison it is necessary that a sentence consecutive to that which the prisoner is already serving should be imposed.  If that were not the case then those in prison could have a free run to commit offences, knowing that they are already serving a substantial sentence and that the courts would take the view that it should not be added to and they would receive merely a concurrent sentence.  We consider, in the public interest and for the maintenance of order in prisons, that if a serious offence is committed in prison a consecutive sentence is appropriate.”

86.In his reasons for sentence, the judge was not dealing just with the 2^nd charge, but also the charges against the other defendants.  When the judge dealt with sentence on the 2^nd charge, he only mentioned the injuries of “Hoi Sin”.  There was no valid basis for the complaints that the judge had taken into consideration of irrelevant matters.

87.Having viewed the CCTV footage ourselves, we fully agreed with the judge’s sentiment that the attack on “Hoi Sin” was extremely savage and that it was amazing that he did not suffer much more serious injuries.  What D1 and D2 did must be deterred.

88.The fact that D1 encounters greater difficulties because he comes from the Mainland is not a mitigating factor.

89.We accepted that there might have been some rivalry between two groups of inmates in Unit 5 and we also accepted that D1 and D2 had pleaded guilty at the first opportunity.  However, it was wrong to describe the injuries to “Hoi Sin” as minor.  He suffered multiple abrasions to his head, multiple bruising on his face and body.

90.What D1 and D2 did must be deterred in order to maintain the necessary discipline in correctional institutions in Hong Kong.  A concurrent sentence would not have any deterrent effect.  In our view, the additional 10-month sentence on D1 and D2 was not manifestly excessive.

91.The application for leave to appeal against sentence by D1 and D2 was therefore dismissed.

(Frank Stock) Vice-President

(W Yeung) Vice-President

(Derek Pang) Judge of the Court of First Instance

Mr Alex Lee, DDPP (Ag.) of the Department of Justice for the Respondent.

1^st Applicant (1^st Defendant): in person.

2^nd Applicant (2^nd Defendant): in person.

Mr Richard D Donald instructed by Messrs Tang, Wong & Chow assigned by DLA for the 3^rd Applicant (3^rd Defendant).

Mr Cheung Kam-ming, Adonis assigned by Director of Legal Aid for the 4^th Applicant (4^th Defendant).

Mr John Marray instructed by Messrs A. M. Mui & Kwan assigned by DLA for the 5^th Applicant (6^th Defendant).