HKSAR v. Wong Yat Fung

CACC 324/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO CACC 324/2011

(On appeal from HCCC 418/2010)

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BETWEEN

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Before: Hon Lunn JA and Barnes J in Court

Date of Hearing: 28 June 2012

Date of Judgment: 28 June 2012

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the court):

1.The applicant seeks leave to appeal against the sentence of 11 years’ imprisonment imposed upon him on 8 August 2011 by Deputy Judge Stuart-Moore following his conviction, on his pleas of guilty, to one count of wounding with intent, contrary to section 17, and to the lesser offence than the same offence alleged by count 2, namely of unlawful and malicious wounding, contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212 (“the Ordinance”).

THE COUNTS

2.The two counts alleged that the applicant, together with four named co-accused, committed the two offences at the same time and place at Yat Tung Estate in Tung Chau on 5 June 2010.  Lee Kwong Pan was the victim of count 1 which alleged that the applicant and his co-accused wounded him with intent to cause him grievous bodily harm.  The court accepted the applicant’s plea to the lesser offence of having unlawfully and maliciously wounded Yu Siu Wai.

THE FACTS

3.The circumstances in which the attack on Lee Kwong Pan and Yu Siu Wai occurred were described succinctly in the Summary of Facts, accepted by the applicant on his pleas of guilty :

“ Shortly before midnight on 5 June 2010 Lee Kwong Pan, a 15 year old boy, was walking a dog with Yu Siu Wai … a 17-year-old boy, near a cycling track off the main entrance of Fook Yat House, Yat Tung Estate, Tung Chung, Lantau. They were joined by Mak Tung Ni, a 15 year old boy. All three boys lived on Yat Tung Estate. As they chatted they noticed a group of male standing nearby. This group was joined by another group of males who came from a nearby footbridge and by Wong Yat Fung (D5) who alighted from a private motor vehicle. Wong Yat Fung was known to Yu Siu Wai and Mak Tung Ni as Ko Lo Ho. After the group met up around 20 persons suddenly charged at Lee Kwong Pan, Yu Siu Wai and Mak Tung Ni.

D5 held a black coloured torch which was about 12 inches long in his left hand. Some of the other attackers held objects in their hands and some did not carry anything.

D5 rushed up to Lee Kwong Pan and struck him on his forehead with a torch D5 held in his left hand. As a result of which his head bled. Other persons in the group kicked and punched Lee Kwong Pan.

Yu Siu Wai went to the assistance of Lee Kwong Pan but was also it on its head with a torch by D5, causing his head to bleed.  D5 tried to hit him a second time with torch but Yu Siu Wai was able to dodge the blow.  Yu Siu Wai was also punched and kicked by other persons.”

4.The victims succeeded in escaping from their assailants.  At about 00:30 police officers found Lee Kwong Pan nearby and he was taken to the Princess Margaret Hospital in Kwai Chung, where an urgent CT scan showed a left frontal epidural hemorrhage.  Successive operations were performed to remove a blood clot in his head.

5.Two months later, in a report dated 14 August 2010, Dr Allen Chan a resident of the Department of Neurology of that hospital described his history and his current condition:

“ Post operatively, he developed pneumonia with septic shock and was transferred to ICU. His condition was stabilised eventually. However, the neurological recovery was fair. MRI brain scan was done on 15th of July 2010. It revealed extensive cerebral infarcts as a result of a previous insult (sic). Currently he was staying in our Lai King Block for rehabilitation. His latest Glasgow Coma scale was 10/15. He remained bedbound and non-communicable. He was totally dependent for [his] activities of daily living. His prognosis was poor and he might remain in this state for the rest of his life.”

6.On admission to the same hospital on 6 June 2010 a 5 cm laceration over the scalp of Yu Siu Wai was sutured and he was discharged against medical advice.

7.On 8 August 2011, prior to the sentencing of the applicant, at the invitation of the court, Dr Chow Kwan Ho, a resident neurologist at Princess Margaret Hospital gave evidence in respect of the then current condition of Lee Kwong Pan.  He said that Lee Kwong Pan had been discharged from hospital only as late as June 2011, after his home had been modified to accommodate his wheelchair.  Now he was able to say simple words but was unable to speak a full sentence.  He was unable to walk, bathe or dress himself because of his brain injury.  He had suffered partial hemiplegic paralysis.  Of his prognosis, Dr Chow said that because he was young he was not sure of the likely eventual recovery.  But, he had definitely sustained severe brain damage.  In respect of his future recovery, he said that there was a very small chance for a miracle to happen.

8.Today, by consent of the parties that court received an update of the medical condition of Lee Kwong Pan.  When last seen by Dr Chow, on 15 February 2012, he could walk a few steps with “heavy assistance”.  Also, he can now speak a few sentences.  But, he still suffers from cognitive impairment.

REASONS FOR SENTENCE

9.In his reasons for sentence the judge adverted to the effect of Dr Chow’s evidence in respect of Lee Kwong Pan, namely that he:

“ ... is now left in a wheelchair and able to speak only simple words; unable even to complete a full sentence and, needless to say, dependent on others for his care. In other words, he has been robbed of any real hope of a normal life…..Dr Chow….could not altogether discount the possibility of a miracle, but it goes without saying, well over a year later, that the progress with this victim is obviously painfully slow.”

10.The judge described the attack on Lee Kwong Pan and his friends as having been cowardly in nature, it being by a group of about 20 or more, some of whom were armed with weapons, on two unarmed boys.  He described the applicant’s role as being that of a gang leader, “surrounded by a host of juvenile followers”.

11.Of the fact that the attack on Lee Kwong Pan and others had occurred whilst the applicant was on bail for an offence of wounding and for common assault, for which he was to be sentenced in the District Court, the judge said that was a factor, given that it was for an offence of the same kind, that made the instant case “additionally serious”. The judge noted that on 15 July 2010 the applicant had been sentenced to 3 years and eight months’ imprisonment for those offences.  Of the circumstances of those offences the judge noted that, following an altercation in a restaurant between two women, to which the applicant had been summoned, on the arrival and intervention of the husband of one of the women he had been set upon by the applicant and four other men and punched to the floor.  Later that day when that man encountered and recognized the applicant he summoned the police.  The applicant left the scene, but soon returned with four other men armed with what resembled water pipes.  The man escaped but his brother, who was in his company, was caught by the men and beaten into unconsciousness.  He suffered an acute subdural hemorrhage and a fractured right orbit and reduced visual clarity.

12.In the result, the judge concluded of the applicant, “you have an extremely violent disposition”.

Starting point

13.The judge took a starting point of 14 years’ imprisonment for sentence in respect of count 1, wounding contrary to section 17, and 2½ years’ imprisonment for the offence of wounding, contrary to section 19 of the Ordinance.

Discount and sentence

14.In imposing sentences of nine years and four months’ imprisonment and 20 months’ imprisonment for the two offences the judge afforded the applicant a one third discount from the starting point taken for sentence.

Totality

15.Of the appropriate total sentence to be imposed on the applicant, the judge said:

“ I have considered totality, but these were senseless, motiveless attacks on two unarmed people, one of whom will probably never walk again. The sentences will be consecutive, so that your sentence for this will be a total of 11 years imprisonment.”

16.Finally, the judge ordered that those sentences be served consecutively to the sentence imposed in July 2010 for the earlier offences of wounding and common assault.  He said he did so having regard to the fact that this instant offences were committed while he was on bail for the other offences which were of a similar nature.  In fact, the applicant had been sentenced in respect of an offence of wounding with intent and another offence of assault.

GROUND OF APPEAL AGAINST SENTENCE

17.On the applicant’s behalf the single ground of appeal against sentence advanced by Mr Francis Cheng was that the starting point for sentence identified by the judge in respect of count 1, namely 14 years’ imprisonment, was manifestly excessive.

18.In his written submissions, he made it clear that no challenge was made to the factors that the judge identified as aggravating the commission of the instant offences, in particular that they were committed whilst the applicant was on bail pending sentence for another offence of wounding.  Further, he accepted the epithet applied by the judge to the applicant that he was a ‘bully’ involved in a ‘cowardly’ attack, aided by a group of persons on two unarmed boys.

19.The thrust of Mr Cheng’s submission was that the starting point taken by the judge was outside the range of sentences imposed in other cases of wounding contrary to section 17 of the Ordinance of factual similarity.  In support of his submission Mr Cheng drew the court’s attention to several judgments of this court, including that in HKSAR v Cheung Kwok Kay (CACC 377/2000; unreported, 4 April 2001).  There, a starting point for sentence taken by the judge of 12 years’ imprisonment for the offence of manslaughter, that being the jury’s verdict as the alternative to a count of murder, was approved in circumstances of (page 6)

“an organised and premeditated triad revenge attack involving a gang of about 20 members with a variety of vicious weapons which were used to inflict terrible injuries on victims who were defenceless.”

20.Also, Mr Cheng relied upon the judgment of this Court in HKSAR v Singh Manjit (CACC 455/1999; unreported, 6 July 2000).  In that case the defendant had been acquitted by a jury of the offence of attempted murder, but found guilty of wounding contrary to section 17 of the Ordinance.  The victim had been attacked by four men with choppers and had suffered severe injuries to his hands, forearm, neck and back.  The injuries were of a life-threatening nature.  This Court said that a sentence of seven years’ imprisonment was not manifestly excessive or wrong in principle.

21.In his written submissions, developed in oral submissions, Mr Cheng called into question the propriety of the order that the sentences be served consecutively.  He said that the attack should be viewed as “one transaction”.

A CONSIDERATION OF THE SUBMISSIONS

22.At the outset it is to be remembered that the offence of wounding with intent, contrary to section 17 of the Ordinance carries a maximum penalty of life imprisonment.

23.As this Court has said on numerous occasions in cases of this kind little guidance is to be obtained from other cases, as each one depends upon its specific facts.  (See the judgment of this Court in HKSAR v Wong Yat Fung (CACC 143/2001; unreported, 9 November 2001 at paragraph 48.)

24.In our judgment, the judge was correct in having regard to both the circumstances of the commission of the offence, a cowardly attack with a potentially deadly weapon on unarmed boys by a group of men, and to the consequences to Lee Kwong Pan in determining the seriousness of the offence the subject of the count.  The consequence of the attack on Lee Kwong Pan was that he sustained injuries that were not merely ‘life-threatening’ but also were ‘life-changing’.  From being a boy happily enjoying a nocturnal walk with his friend and a dog, he was rendered a mental and physical cripple, probably for life.

25.Although the starting point taken by the judge 14 years’ imprisonment for that offence was high we are satisfied that it was within the range of sentences available to the judge in the exercise of his discretion.

26.Of the order that the two sentences were to be served entirely consecutively with one another, it is to be remembered that the two victims were attacked in sequence, moments after one another, in the same attack at the same time and place.  In those circumstances, we have a real concern that was the appropriate approach to sentence.  However, in any event, in our judgment, having regard to the principle of totality, the resulting sentence of 11 years’ imprisonment was manifestly excessive.  We are satisfied that the appropriate totality of sentence is to be achieved by ordering that the two sentences are to be served concurrently.

CONCLUSION

27.In the result, we allow the application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, we allow the appeal to the extent that we quash the order that the sentence of 20 months’ imprisonment be served consecutively to the sentence of nine years and four months’ imprisonment imposed in respect of count 1.  In its place, we order that the sentence be served concurrently with that sentence.  Accordingly, the total sentence of imprisonment imposed upon the applicant for those offences is nine years and four months’ imprisonment.

Mr MAN Tak-ho Jonathan, ADPP, of the Department of Justice, for the Respondent

Mr. Francis M. B. Cheng instructed by Pang, Wan & Choi, assigned by Director of Legal Aid, for the Applicant