THE QUEEN v. BUI VAN CHINH

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J U D G M E N T

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Power, J.A.:

1. At the conclusion of the hearing we stated that leave to appeal against conviction out of time was refused but that leave to appeal against sentence was granted. We treated the application for leave as the hearing of the appeal and allowed the appeal. The sentence imposed was ordered to be varied to one which would allow the immediate release of the applicant. We stated that we would hand gown our reasons at a later time and this we now do.

2. This matter came before Deputy Judge Cannon on 22nd June 1987. The applicant was the first of 4 defendants and he and the 2nd defendant were represented by Mr. Carl Lam. The charge was that he and three other named persons on the 14th December 1986, at the toilet of Dormitory K, Hei Ling Chau Close Centre, Hong Kong, unlawfully and maliciously wounded Tran Ba Glang with intent to do him grievous bodily harm. The record of proceedings on the 22nd of June reveals that the applicant pleaded guilty to the charges and the other three defendants pleaded not guilty. Mr. Percy, on fiat for the Crown, had asked at the outset to amend a summary of facts which he intended to use for the purpose of opening his case. It would appear that this summary was then before the Deputy Judge. The amendments were allowed but it is clear when one reads them, that it was only after further significant amendments were made to that summary that the "Amended Summary of Facts for Accused 1", which forms part of the appeal bundle, came into existence.

3. It appears from the record that the applicant pleaded guilty before the Crown opened its case against the other three defendants and that the plea in mitigation was reserved until completion of the trial. Counsel have agreed, although the incomplete record furnished to us for the purpose of this appeal does not show it, that the "Amended Summary of Facts for Accused 1" was read to the accused and agreed to by him before the case against the other three defendants was opened.

4. The Crown having opened, the case against the other three defendants proceeded in the presence of the applicant. The Crown sought to prove that they were implicated both in the attack with a pole wielded by the applicant on the victim and in an attack immediately thereafter with a sharp object. The other three were, in the outcome, acquitted.

5. It is important to set out the "Amended Summary of Facts for Accused 1" in full it reads as follows:

"At about 9.50 a.m. on the date of offence, PW1 (the victim) was in the public lavatory of Dormitory K of the Hei Ling Chau Close Centre. Suddenly the toilet door was kicked opened at the same time D1 (the applicant) stabbed the victim with a wooden pole.

    At this juncture PW2 who heard PW1's cry rushed to the toilet but was denied entry. PW2 then left to seek assistance. PW3 who also heard PW1 scream went to the lavatory to check, PW3 witnessed D1 ran back into the lavatory and struck PW1 with the wooden pole. DI then fled.

    At the same time PW4 and PW5 who were on patrol in the vicinity found D1 rushed out from the said lavatory with a wooden pole in his hand. PW4 and PW5 subdued D1 and went into the lavatory for investigation.

    PW6 was then informed of the event who also seized the said wooden pole from Dl. Police was then called and PW1 was taken to hospital for treatment.

    Immediately prior to be operated by doctor of the Queen Mary Hospital, PW1 positively identified D1 as one of the assailants."

6. On the 17th of July 1987 Mr. Lam made a plea in mitigation in the course of which he said;

"Wounding to victim minor degree on part of defendant. Only used a wooden pole to strike victim. Other more serious injury of victim put him to operation. Injuries Court saw in Court. Scars and stab wounds. Not find defendant having inflicted the blow. Open to Court to say, joint enterprise between the defendant on victims and defendant equally responsible within joint enterprise, namely stabbing. Ask Court to find minor degree in this regard. Defendant'-only ran into toilet after the more-serious wounds inflicted. Used wooden pole to stab victim several times. Impulse momentary. Stupid."

It is, perhaps, not without significance that when this plea was being made the trial of the other defendants had taken place and all of the evidence against then, which had included an allegation of a stabbing with a sharp instrument had been aired before the court. The Deputy judge in his Reasons for sentence said:

"On the one hand this was a wounding incident involving sceveral assailants, resulting in most serious injury. The defendant had been identified as having a wooden pole at the scene, although the worst injuries were said by the medical expert fitness to have been caused by a finer pointed weapon, such as a knife."

He was clearly sentencing the applicant upon the basis of an offence which involved a joint attack in which a knife was used to cause serious injury.

7. Mr. Poll, for the applicant, sought leave to appeal against conviction our of time upon the basis that, the facts having failed to disclose a wounding in a joint attack, the Deputy Judge should have refused to accept the plea of guilty. He submitted that the facts disclosed only that the applicant had "stabbed the victim with a wooden pole" and that nothing was admitted which would establish either that the stabbing with the Pole had resulted in a wounding or that there had been a joint attack.

8. Mr. Bruce, who appeared for the Crown, submitted that when a person pleads guilty he admits each and every element of the offence [The Queen v. Riley⁽¹⁾] and that the applicant's plea involved an admission of a wounding which the Court was entitled no consider together with the admission that he had stabbed the victim with a wooden pole. When this was done, he submitted, the Court could be properly satisfied that the plea was grounded in admitted facts of sufficient particularity to establish the wounding element of the charge. We are satisfied as to the correctness of this submission.

9. In our view the question as to whether or not the wounding was joint is a matter of aggravation which goes to sentence rather than conviction but it is convenient to turn next to Mr. Bruce's contention that the court properly acted upon the basis that facts had been admitted which established a joint enterprise. He turns first to the charge which, as worded, clearly alleges a joint enterprise. He concedes that nowhere in the first three paragraphs of the admitted fact which described what occurred at the time of the attack is there any admission of joint enterprise but says that such an admission can be inferred from the fact that the applicant agreed to the fact that "immediately prior to be operated by doctor of the Queen Mary Hospital P.W.1 positively identified Dl as one of the assailants." He submits that this admission taken with the admission involved in the plea itself is sufficient to establish the joint element of the charge. He points out also that the solicitor for the applicant, when making the submissions in mitigation set out above, clearly recognised that an admission of a joint attack had been made.

10. Given that there was more than one assault and that there were a number of assailants the admission by the applicant that he had been identified as one of the assailants standing alone could not, in our view, fairly be construed to involve an admission that the assault in which he was involved was an assault by more than one person. It can be suggested that the plea itself involved an admission of a joint attack. Given, however, that the facts contained no such allegation we are satisfied that before dealing with the applicant upon that basis it was, in the circumstances, incumbent upon the Deputy Judge to make enquiry to establish whether or not a joint attack was admitted, and that, this not having been done, the applicant should not have been dealt with upon the basis that he was involved in a joint attack.

11. As to the suggestion that the plea in mitigation involved a recognition that such an admission had been made we say no more than that if the admitted facts did not establish such an element nothing said in mitigation could do so. However, as we have already indicated, the question as to whether or not the attack was a joint one is an aggravating factor which does not go to the propriety of the plea. The applicant having admitted facts sufficient to establish a wounding carried out by him using a wooden pole was, we were satisfied, properly convicted of the offence of wounding. We therefore dismissed the application to appeal against conviction out of time.

12. Mr. Poll argued that the sentence was clearly excessive as the Deputy Judge had imposed it upon the basis of a joint assault during which a wound was inflicted with a sharp object. We were satisfied for the reasons set out above that the Deputy Judge did sentence upon that basis and that :.he was wrong in so doing.

13. In the circumstances we considered it proper to order that the sentence be varied to allow for the immediate release of the applicant.

(1) (1896) 1 Q.B. 309