HKSAR v. YIP KAM WAH AND ANOTHER

CACC413/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 413 OF 2007

(ON APPEAL FROM DCCC 649 OF 2007)

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REASONS  FOR  JUDGMENT

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McMahon J (giving the judgment of the Court) :

1. The 1^st applicant (“D1”) was convicted on his own plea before Judge Mackintosh in the District Court of two offences of wounding, contrary to section 19 of the offences against the Person Ordinance, Cap. 212 (being Charges 1 and 2).  The judge also convicted, after trial, the 2^nd applicant (“D2”) of an offence of affray, contrary to Common Law (Charge 4).  That charge was added by the judge, pursuant to section 23 of Cap. 221, at the close of the prosecution case.  As far as D2 was concerned, it was in the alternative to Charge 1.  D1 was sentenced to 16 months’ imprisonment in respect of each of the wounding offences, 8 months’ of the sentence imposed in respect of 2^nd charged offence being ordered to be served consecutively, resulting in a total sentence of two years’ imprisonment.  D2 was sentenced to 15 months’ imprisonment.  Other defendants involved in the offences (“D3” and “D4” at trial) were also convicted of affray and, in the case of D4, of possession of an offensive weapon. 

2. Both applicants sought leave to appeal their sentences.  D2 had initially sought leave to appeal his conviction but did not pursue that application before us and it was dismissed. 

3. On 14 March 2008, we granted leave and allowed the appeals of both applicants to the extent that D1’s sentence was reduced to 16 months’ imprisonment and the sentence of D2 was reduced so as to allow his immediate release.  We now give our reasons. 

The prosecution case

4. The prosecution case was that the defendants were the occupants of what is known as a “metal” house located in an isolated area off Route Twisk near Tsuen Wan.  A neighbour (“PW1”) suspected them of tampering with her car.  She went to their house with two male associates (“PW2” and “PW3”) to speak with the applicants about her suspicions.  During their conversation at the doorway of the house, a dispute arose.  D2 lunged at PW2 and pushed him across a pathway onto an old sofa where they grappled.  D1 at some stage armed himself with a hammer and a chopper and attempted to strike PW2 with the chopper.  PW2 somehow picked up a wooden pole and defended himself by warding off D1’s blows.  Nevertheless PW2 received a small wound to one of his fingers. 

5. Two of the defendant’s neighbours (i.e. D3 and D4 at trial) came to assist D1 and D2.  They struggled with PW3 and at one stage D4 also armed himself with a chopper and threatened PW3 with it.  PW3 however was able to break free from D3 and D4 and went to assist PW2.  He received a chop injury to his chest from D1 as he did so.  PW1 then shouted she had called the police and the fighting stopped.  The police subsequently arrested D1 to D4. 

6. The incident was short-lived and those involved were in close proximity with one another.  The injury sustained by PW2 the subject of 1^st charged offence was minor, comprising a centimeter long cut to his finger.  The injury inflicted upon PW3 was more significant. being an 8-cm laceration to his chest. 

D1

7. D1 was unrepresented before us.  His complaint was essentially that by ordering his sentences to run partly consecutively and arriving at a totality of sentence of 24 months’ imprisonment, the judge had effectively taken a global starting point of three years’ imprisonment.  Given that the offences had taken place in the course of a single fight, and given the nature of the injuries, he says that starting point was manifestly excessive. 

8. It seems to us that in the circumstances of a brief and confused melee such as took place and where the injuries to PW3 were inflicted at a time when D1 was fighting with PW2, and PW3 had intervened in an attempt to assist PW2, there is some merit to D1’s complaint that the two wounding offences were really part and parcel of the same incident. 

9. The two years starting point adopted by the judge in respect of each of the offences also seems on the high side given the nature of the injuries suffered.  Both PW2 and PW3 were discharged from hospital immediately after treatment of their injuries. 

10. The maximum sentence for an offence of wounding pursuant to section 19 of the offences against the Person Ordinance is three years’ imprisonment.  Effectively the global starting point taking by the judge in respect of D1’s involvement in this incident was at that maximum.  Even if the starting points for the individual sentences of two years’ imprisonment were not manifestly excessive we are of the view that the notional or global starting point taken by the judge resulting in a totality of sentence after plea of two years’ imprisonment, in the circumstances of this case, was manifestly excessive.  

11. In our judgment the appropriate total sentence should have been 16 months’ imprisonment after plea. 

12. Accordingly we allowed D1’s application for leave to appeal, treated the hearing as the appeal and allowed the appeal to the extent that we ordered the sentences imposed in respect of the 1^st and 2^nd charged offences be served concurrently.  That is a totality of 16 months’ imprisonment.  

D2

13. Mr Walter Lau advanced two grounds of appeal on behalf of D2 :

(1)	the judge failed to distinguish the lesser culpability of D2’s role from that of his co-accused; and
(2)	the judge failed to take into account the circumstances of the affray.

Ground 1 — D2’s lesser culpability

14. The judge in his reasons for verdict arrived at this finding of fact :

“… D1 launched himself at PW2 having armed himself with a hammer and a chopper that he had picked up in the house after the confrontation had started.  Although his attack coincided with that of D2, I am not convinced that D2 knew that he intended to or had picked up the weapons.  Thus, although D2’s own acts were aggressive and, I am sure, not in any way defensive, he was not acting in concert with D1 so far as the weapons were concerned.  It is for that reason that I do not find D2 to be a party to the wounding of PW2.  I note that the prosecution never alleged D2 to be a party to the second wounding in charge 2. …”

15. Mr Lau argues that if, as the judge found, D2 was not acting together with D1 in the knowledge that D1 was using weapons, then D2’s own role went little further than that of a person involved in a group fist-fight.  We think there is some merit in this argument.  We note that the role of D2 was restricted to physically struggling with PW2 and that D2 did not attack PW3 or anyone else at any time, nor did PW2 suffer any injury as a result of D2’s attack.  D2’s role in the fight seemed to be restricted to pushing PW2 onto and then struggling with PW2 on the sofa outside the house, during which he held him by the neck. 

Ground 2 — the circumstances of the affray

16. The judge in his reasons for sentence said of the circumstances of the affray :

“I accept that it was spontaneous rather than planned, and that it was short lived, and that it did not, in fact, involve parties other than those in this limited group.”

17. Additionally, he was obviously advertent to the fact that weapons had been used and PW1 and PW3 injured. 

18. We have been referred to a number of cases dealing with sentences imposed for offences of affray but do not find them of particular assistance.  Affrays vary greatly on their facts and the sentence imposed on a defendant must always be case specific.  A court should take into account the nature of the affray itself, for example where it occurred and the number of persons placed in fear by it, the number of participants, its duration, whether it was spontaneous or organized, the nature of the violence, whether weapons were used and whether injuries were occasioned and if so how serious those injuries were : see R. v. Nguyen Quang Thong [1992] 2 HKCLR 10 at 15, per Silke VP.  The role of a particular defendant, so far as that can be ascertained, is also as we have said, a factor. 

19. In the present case, on the facts found by the judge, the affray took place in a reasonably isolated location.  It was not a fight in a crowded street.  The number of persons involved was limited, as were the persons at the scene who were liable to be put in fear by the affray.  Whilst a weapon was used and another brandished the injuries sustained by PW2 and PW3 were not of the worst sort. 

20. Taking into account the role of D2 and the circumstances of the affray itself we think the sentence after trial of 15 months’ imprisonment was manifestly excessive.  In our view the appropriate sentence should have been one in the vicinity of 10 months’ imprisonment.  

21. We understand that D2 has been in custody for nearly 9 months, i.e. since the date of the offence on 20 June 2007.  There was nothing before us to suggest he would not be entitled to the usual deductions.  Accordingly we granted leave, treated the hearing as the appeal and allowed the appeal to the extent that we ordered his immediate release.