THE QUEEN v. NGUYEN VAN DUONG

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JUDGMENT OF THE COURT

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Silke, V.-P.:

1. Nguyen Quang Thong (Criminal Appeal No.244/89) having had his application in respect of his conviction dismissed now seeks leave to appeal against a sentence of 3½ years' imprisonment passed upon him for the offence of wounding with intent to cause grievous bodily harm, contrary to section 17 of the Offences against the Person Ordinance.

2. That conviction was recorded and sentence passed by His Honour Judge Caird. Mr. Murray appears for the applicant in this Court.

3. Nguyen Van Duong - aged 23 - (Criminal Appeal No.208/89) seeks leave to appeal his sentence of 3 years' imprisonment for the offence of affray to which he also pleaded guilty.

4. Le Van Luong - aged 22 - (Criminal Appeal No.210/89) also seeks leave to appeal against the same sentence for the same offence and to which he pleaded guilty.

5. In both appeals Mr. Mitchell appears for the applicants as he did at trial.

6. All these sentences involved offences committed by members of that group now known as the Vietnamese Boat People and in Hei Ling Chau Detention Centre.

7. In 208 and 210 a large number of Vietnamese were charged with affray, arising from the same incident, on three separate charge sheets - that for the sake of convenience there being eleven persons on each charge sheet. Nguyen Van Dong and Le Van Luong were the only two of those 33 defendants to plead guilty on plea day and before His Honour Judge Evans. Separate trials are taking place in respect of the remaining named defendants and we are given to understand that one trial has already taken place with judgment reserved.

8. With the concurrence of Mr. Murray and Mr. Mitchell and also that of Mr. Pang - who appears for the Crown in all three matters - we heard these applications together. There were certain features common to all three although the offences, and the facts relating to them differed. Mr. Hurray and then Mr. Mitchell addressed us. Mr. Pang replied.

9. Dealing first with No.244 - Nguyen Quang Thong.

10. The wounded man, Le Ngoc Son, was watching television at 12:15 a.m. on 8th August 1988 in Dining Room A at Hei Ling Chau Detention Centre. Three men entered and he was attacked. All were holding iron bars. Those bars were described as about four feet in length but capable of being folded. We have been unable to ascertain what purpose the bars might have served in their ordinary context. Le received, according to the medical report produced by consent, three lacerated 5cm wounds over the vertex; a 3cm lacerated wound over the occipital region and a laceration, 2cm in length, over the right thumb. He also received that which was described as "minor abrasions over the right forearm and the left loin". We have seen photographs of these wounds and were a little suprised to find the injury to the left loin so described. Certainly the trial judge thought this to be the most serious of the wounds.

11. The issue at trial was identification and, if identified, what was the applicant's participation. The trial judge accepted the correctness of the identification - the applicant and Le were known to each other prior to the incident - and found that the applicant's participation was that of being present during the course of the incident, holding an iron bar but not as an inflictor of any of the blows.

12. There was a previous history between the two. Le assaulted the applicant and was imprisoned for one month after a trial resulting from that incident. He had been released one day before 8th August. Both lived in the same dormitony at Hei Ling Chau.

13. In the Reasons given for the sentence passed the trial judge made reference: first to two earlier and general occurrences to the Detention Camp that evening; second that he was very concerned because the applicant had come to Hong Kong uninvited and unwanted but had then involved himself in an assault of this nature. He looked upon this case as "far more serious than most wounding cases that come before me". He bore in mind the age of the applicant - 18 years - and that all the injuries except the one to the abdomen - by which we take it he meant the injury to the loin - "are what one would expect to have inflicted in an ordinary game of rugby". As to this last, given the nature of the injuries, this seems to reflect more on the standards of the game where the trial judge either played or watched his rugby.

14. As a result of the views he expressed, and the overall view he had taken of the facts, the trial judge did not seek either Detention or Training Centre Reports because he was of the view that a deterrent sentence was called for. He took as his starting point 4 years' imprisonment and, allowing a deduction for the applicant's plea, his youth and the fact that he did not actually strike a blow, arrived at sentence passed of 3½ years.

15. We accept that internecine warfare between uninvited guests in Hong Kong is not something which can be permitted to continue. We accept that, if there be a rule of sentencing practice that a deterrent sentence should not be passed on a man with a clear record there are exceptions and offences against public order is one of them. That this is so was underlined in the judgment of Robert Goff,L.J. in Mark Anderson and Others [1985] 7 Criminal Appeal Reports (Sentencing) 210 at page 213.

16. We accept that, unless there be some unusual matters of mitigation, sentences in section 17 wounding cases should noramlly be custodial even for those of youthful age - Attorney General v. Sin Wai Lun [1988] 1 HKLR 580.

17. We do not understand the trial judge's reference to the two earlier occurrence as in the Detention Camp as having a bearing upon the events which led to this charge. They seem entirely unconnected with the offence here. We do however accept as a matter of principle that offences of this nature within a Detention Camp - where people live in close proximity and in conditions far from salubrious, matters which, combined with the general lack of hope for resettlement, must lead to considerable tension and the hightening of tempers - require the Courts, when considering the appropriate sentence, to emphasis by way of ones comparatively severe, the necessity for the maintenance of control.

18. However, in our judgment the trial judge, in all the circumstances of this case which we have enumerated went too far when he described it as far more serious than most wounding cases which came before him. Whether the injuries themselves were such as to constitute grevious harm was not raised below or argued before us but they clearly were at the lower end of the scale. We think that 4 years was too high a starting point. Three years after trial and without mitigation might well have been right. In the light of the strong mitigating factors, of which the judge quite properly took note, and which have been also urged upon us by Mr. Murray, we think that the public interest would be served, and a clear warning sent to those who might consider participating in such events in the future, by a sentence of 2 years' imprisonment.

19. We would grant leave, treat the hearing as the hearing of the appeal and allow the appeal by setting aside the sentence of 3½ years and substituting for it one of 2 years' imprisonment.

20. Dealing now with 208 and 210 - Nguyen Van Dong and Le Van Luong.

21. The affray took place on 19th December 1988 in Dormitory K at Hei Ling Chau. On that evening, at about 10:45 p.m., 15 Vietnamese Boat People were attacked by a large group of other Vietnamese Boat People. It started by way of attack on one particular person and then grew into a general melee. Participants were armed with iron bars and homemade knives. There had been previous incidents between persons from North and South Vietnam. The majority in the camp were Northerners. On 21st November South Vietnamese national flags had been displayed which gave offence. As a result of that, and of earlier incidents, a large number of Vietnamese Boat People was transferred to Cape collinson Correctional Institute. This engendered in the minds of the remaining Southern Vietnamese a strong desire to also be transferred. At the time of the incident Dormitory K contained a clear majority of Southern Vietnamese there also being present Northern Vietnamese and a small number from other areas of Vietnam.

22. The attack lasted for about 15 minutes and 16 persons were injured in the course of it though none seriously. The attacking group then moved all those attacked to the rear entrance. At 1:20 a.m., it being now the 20th December, the Correctional Services Officers regained, control.

23. Twelve persons were arrested, the next day and, following a photographic identification parade, 44 further persons were arrested a few days later. The arrest of this 44 was hindered somewhat at first as they locked themselves into the Dormitory but eventually, and without force, 40 of them were arrested. Of the total, 39 were sufficiently identified for charges to be laid. Recently, some of those persons accepted voluntary repatriation to Vietnam and were returned without being tried. In the course of the hearing of this application we were informed by Mr. Mitchell that Nguyen was willing, given that he was accepted, to be voluntarily repatriated. It was suggested that such sentence should be imposed upon him to allow this to happen. We consider that to be entirely a matter for the Executive and our duty is to consider what in all the circumstances is the proper sentence.

24. Nguyen received stab wounds. He was also identified as having attacked and with an unspecified weapon. Le was also described as holding an unspecified weapon.

25. In the reasons he gave for the sentences passed, Judge Evans bore in mind that the injuries were not of the most serious kind and that both of the applicants pleaded guilty at first opportunity. To that we would add that the evidence was far from overwhelming and this plea indicated genuine remorse. The judge also noted that the degree of the violence and the holding of a group of person before the Correctional Services regained control must have "been one such as to frighten reasonable people". Mr. Mitchell, as he has done before us, drew the attention of the Judge to the fate of young men in confinement with nothing to do and with little prospect for the future. He also made reference to the previous history of quarrels between the two different groups, which had their roots in the conditions under which Vietnamese boat people lived, the lack of any normal communication with females and, we add, the outside world.

26. The judge was aware that some of those involved in the affray had subsequently been. repatriated to Vietnam. He accepted that the applicants were not the persons who started the incident. He accepted that the affray did not take place in the public street but he was of the view that gang violence of this nature in a place of enforced discipline and confinement should be seriously regarded and that those who participated should be:

"punished severely both for having, taken part in such a disturbance and to discourage others who may have a mind to cause or be involved in such incidents in the future."

27. The trial judge said it was difficult to find authority on sentencing for affray but took note of some of the cases referred to in Fallons Crown Court Practice: Sentence: (pages 149 to 153) and in Professor Thomas' Principles of Sentencing, 2nd Edition (pages 110 to 112). It is true that there is a singular absence of authority in Hong Kong on sentence for this offence, which may be because, fortunately, it occurs so rarely in the open streets of this city.

28. Mr. Mitchell has drawn our attention to a number of authorities including Mark Anderson and Others (1985) 7 Criminal Appeal Reports (Sentencing) page 210; Kin Sun Chu and Others (1987) 9 Criminal Anneal Reports (Sentencing) and to the cases referred to in Fallon and Thomas.

29. From these it is apparent that a distinction is drawn between a premeditated affray and one which erupts spontaneously; further as between the nature of the weapons used, the injuries inflicted, the violence involved, the damage, if any, to public or private property and the number of persons.

30. Mr. Mitchell has urged upon us that this was in the nature of a spontaneous affray. We do not agree. There were clearly elements of premeditation in the origin of the attack though we accept that the general melee which followed did have an element of spontaneity.

31. Another matter which, in the particular circumstances here, must be given consideraton is the protection to be afforded to officers of the Correctional Services Department. They have a difficult, unwelcome and unpleasant task in policing these Detention Camps and they are entitled to that protection. The other side of the coin is that, to an extent, the conditions of confinement, without charge, without trial, and without very much hope for the future, of the Vietnamese Boat people must inevitably lead to considerable tension conducive to violence.

32. Because of the unusual features attached to these applications we thought it right that we should give further consideration to the propriety of the sentences passed, Other judges of the District Court may well find themselves faced with the same problems and might welcome assistance. It was for this reason that we reserved judgment.

33. The trial judge took as his starting point 4½ years' imprisonment and then, in the light of the plea, allowed a reduction. He was faced with a difficult problem - just as are we. Incidents such as these can spread like wildfire in the conditions in those Camps. It is proper that the sentences for participants should be custodial and it is proper that they should seek to deter.

34. It is noteworthy that the new Public Order Act in the United Kingdom makes affray a statutory offence. It provides for maximum sentences for three forms of public disorder: Riot - 10 years; Violent Disorder - 5 years and Affray - 3 years. Here the offence is still one at Common Law and carries a maximum penalty of seven years. (s. 90 Cap. 1).

35. Bearing in mind all the factors to which we have made reference we are of the view that the starting point of 4½ years after trial and before mitigation was somewhat on the high side leading to sentences which we consider were excessive. In our judgment, when the interests of members of the Correctional Services Department coupled with the required element of deterrence are balanced with the substantial mitigation in these particular cases, the public interest would he best served by sentences of 2½ years' imprisonment.

36. We stress that the circumstances of affray can vary infinitely and while that which we have said might be of some assistance to judges faced with a difficult sentencing task it can only be of general guidance.

37. In the event, we grant leave, treat the hearing as the hearing of the appeal and allow the appeal. We set aside the sentences of 3 years' imprisonment and substitute therefor sentences of 2¼ years' imprisonment on each appellant.