HKSAR v. CHAN KING YUN JAMES

CAC C 384/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 384 OF 2011

(ON APPEAL FROM DCCC NO. 238 OF 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Hartmann JA (giving the Reasons for Judgment of the Court):

Introduction

1.  On 28 June 2011, the applicant was convicted of the offence of inflicting grievous bodily harm upon another person, contrary to s. 19 of the Offences against the Person Ordinance, Cap 212.  He was sentenced to a term of imprisonment of 20 months.

2.  The applicant sought leave to appeal both his conviction and sentence out of time.  We granted leave to appeal out of time.  Having heard submissions, we refused leave in respect of both applications.  We said that we would give our reasons later and do so now.

Background

3.  On an evening in the summer of 2010, a group of men gathered together at a public basketball court in Victoria Park for a game.  The game was open to all-comers.  A number of the players knew each other, a number did not.  Nothing more was at stake than the opportunity for some exercise and friendly competition.

4.  During the course of the game, the applicant, a man described by the judge as being well-built, came into possession of the basketball.  A member of the opposing team came up behind him, attempting to win the ball off him or to restrict the applicant’s ability to pass the ball.

5.  On the evidence, the judge found that the applicant, who initially had his back to the opposing player, thrust back his elbows into the body of the opposing player.  He then turned so that he was facing the opposing player and punched him in the face.  In reaction to the blow to his face, the opposing player was seen to tremble – one player described it as falling into a form of trance – before falling backwards and hitting his head on the ground.

6.  The opposing player, the victim of the applicant’s attack, suffered serious injuries to the area of his brain.  In the result, to use the words of the trial judge: “he is now unable to speak, feed himself, get out of bed, walk or do anything for himself.  He now requires around-the-clock care.”

The basis of the conviction

7.  On the evidence, it was clearly open to the judge to infer that the applicant, in punching the opposing player in the face, not only committed an unlawful act but did so with the intention of causing bodily harm.  The applicant after all had to turn to face his victim before delivering the blow.

8.  However, taking into account the ebb and flow of the game, the applicant was convicted on the basis of what is called ‘subjective recklessness’, that is, that, in punching the opposing player in the face, he consciously took an unjustified risk of causing bodily harm to him.  Expressed more formally, the applicant was convicted on the basis that, when he struck the opposing player, he foresaw the risk of causing some bodily harm to him but nevertheless went ahead and took that risk even though, in the circumstances known to him, it was unreasonable to do so.

The challenge to conviction

9.  There was a single challenge to conviction.  It was to the effect that the judge, in looking to the evidence, failed to take into account that the applicant may not have foreseen the risk involved in his actions.  This challenge was based on the single premise that, in the swiftness of the game, a game in which there were bound to be degrees of physical contact, events happened so quickly that it was incumbent on the judge to consider whether the applicant was able to form an awareness of the unjustified risk inherent in his actions.  As Mr Donald, the applicant’s counsel, expressed it, in such circumstances it was open to the court to find that the applicant was incapable of forming any such awareness.

10.  There was nothing to this point.

11.  While the initial elbowing may be seen as perhaps an almost unconscious act, woven into the essential fabric of the game and explained by over enthusiasm, the punch in the face was, on the evidence, an entirely independent action.  The evidence accepted by the judge showed that the applicant originally had his back to the opposing player (the victim), keeping his body between the opposing player and the ball.  That was when the elbowing took place.  The applicant, however, then turned so that he was facing the opposing player and was in a position to deliver the punch to his face.  On that evidence the act of delivering the punch was a distinct, deliberate act.

12.  It was the finding of the judge that, when the applicant executed the punch – an act entirely outside of the rules of the game and the contemplation of those who seek to play it lawfully – he must have foreseen the risk of injury to the opposing player but nevertheless, despite the risk, went ahead with his unlawful act.  On the evidence, that finding was fully open to her.

13.  That the judge founded her conviction on subjective recklessness rather than direct intent points to the fact that she did take into account that the assault on the victim took place in the heat and moment of the game.

Sentence

14.  For an offence of inflicting grievous bodily harm contrary to s. 19 of the Offences against the Person Ordinance, the maximum sentence that may be imposed after a trial on indictment is three years.

15.  The judge recognised that there is no ‘tariff’ in cases of this kind, sentence being determined on the facts of each case.

16.  Having regard to the circumstances of the case before her, in particular the grave disabilities sustained by the victim, the judge chose as the starting point a term of two years’ imprisonment.  From this, she gave a discount of four months’ imprisonment, principally in order to take into account that the attack was not premeditated and, aside from the elbowing, was constituted by a single punch to the face.  The sentence imposed was therefore one of 20 months’ imprisonment.

17.  Mr Donald submitted that the sentence was manifestly excessive.  He based his submission on two grounds; first, that this was a ‘one punch situation’ and, second, that the judge was unduly influenced by the nature of the injuries sustained by the victim.

18.  As we have said, the judge did take into account as mitigating factors that the assault consisted essentially of a single punch, a blow delivered in the heat of the moment without any premeditation, and that the devastating consequences could not have been intended.  However, in looking to all the relevant circumstances, she observed that the applicant was a well-built individual.  Clearly too, it seems to us, to cause the victim to react in the way he did, the punch must have been delivered with force.

19.  The judge also took into account that the assault was an act of needless aggression which took place in the context of a friendly game of basketball on a public court.  It was, in her view, so unnecessary.  Therein, she said, lay ‘the tragedy’ of the case.  We agree.  Persons, young or old and of all levels of ability, who gather at public facilities to play a friendly game of sport must expect to be able to do so in safety.  Violent aggression of the kind displayed by the applicant must be deterred.

20.  Naturally, the judge took into account the grave nature of the injuries sustained by the victim.  It was her duty to do so.  It was a seriously aggravating feature.  There is, however, nothing to suggest that she placed undue emphasis on the nature of the victim’s injuries.

21.  In our judgment, the sentence imposed by the judge fell well within the parameters of her discretion.