HKSAR v. GALANZA, ARNEL CABINGAS

CACC 304/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 304 OF 2003

(ON APPEAL FROM DCCC NO. 1242 OF 2002)

_______________________

________________________

________________________

J U D G M E N T

________________________

Hon Yeung JA (giving judgment of the Court):

Background

1. The applicant, Galanza Arnel Cabingas, appeared before Judge Saunders in the District Court on a single charge of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance.

2. The applicant pleaded not guilty to the charge, but was convicted after trial and sentenced to 6 years' imprisonment.

3. He sought leave to appeal against both conviction and sentence.

4. Mr. McGowan, on the instruction of the Director of Legal Aid, represented the applicant only on his application for leave to appeal against sentence. Therefore, the applicant himself had to argue the application for leave to appeal against conviction.

5. In his initial Notice of Application for leave to appeal against conviction, the applicant put forward his ground as: "I felt the conviction did not convince me." The applicant did not subsequently filed any perfected grounds of appeal or written submissions.

6. In his oral submission before us, the applicant said he did not use any weapon to hit the victim. The applicant also said he was just trying to prevent the victim from being attacked by someone unknown to him.

7. At the end of the hearing, we dismissed the application for leave to appeal against conviction with reasons to be handed down. We also reserved our decision on the application for leave to appeal against sentence. We now give our reasons and our decision.

Prosecution Case

8. The victim-Mr. Castro, a tourist from the Philippines, arrived in Hong Kong in late-August 2002. In the early morning on 8th September 2002, Mr. Castro was together with three female friends, having been to discos in the Wanchai area.

9. The victim's group encountered the applicant, who was then together with three Filipino males and two Filipino females. The applicant's group accused Mr. Castro of staring at them. When Mr. Castro denied, he was first assaulted with fists.

10. Mr. Castro tried to escape in one direction with one of his female friends (Ms Ere) while his other two female friends fled in another direction. The applicant and his three male companions hotly pursued Mr. Castro and Ms Ere.

11. Mr. Castro and Ms Ere tried to take shelter by asking the caretaker of Yen May Building in Swatow Street for permission to enter the building. However, the caretaker refused, as a result, Mr. Castro was apprehended and assaulted by the applicant and his three male companions.

12. According to Mr. Castro, two men assaulted him with a piece of concrete and a wooden stick while the other two kicked him. Ms Ere said it was the applicant who used the piece of concrete in the attack.

13. Mr. Castro suffered serious injuries to his back and head, including lacerations, and a depressed skull fracture. He was hospitalized for about two weeks until 22nd of September 2002.

14. Because of the report made by Ms Ere, a party of police officers arrived. They saw the applicant and this three male companions running out of Swatow Street and boarding a taxi. The police party chased after them.

15. The applicant, having alighted from the taxi, tried to escape. He and one of his male companions were apprehended while the other two managed to escape. The applicant was apprehended on the rooftop of a building in Thomson Road.

16. In an identification parade held on 9th September 2002, Ms Ere positively identified the applicant as the assailant who attacked Mr. Castro with a piece of concrete. Ms Ere denied any attempt by anyone to interfere in the attack on Mr. Castro.

17. The applicant, in a video recorded interview, admitted to have been present during the assault on Mr. Castro. However, he said he was just trying to separate a fight and had not played any violent role. When he tried to leave by a taxi, two Filipino males, whom he had only met once or twice and who took part in the fighting, also boarded the same taxi.

18. At the interview, the applicant also said he went into the building in Thomson Road because he was worried that he would be implicated in the fighting.

19. However, the applicant chose not to give evidence in court to substantiate what he said at the interview.

Findings by the Judge

20. The judge accepted the evidence of Ms Ere which was inconsistent with what the applicant said at the interview.

21. On the other hand, the judge said "the circumstances of the identity parade were such that Ms Ere's identification of the accused as a participant would not be sufficient to establish beyond reasonable doubt his involvement, but his admission of presence supports her identification of him as a participant in the assault".

22. On the evidence that he accepted, the judge concluded that the applicant and his three male companions were acting in concert in the attack on Mr. Castro.

23. The judge was entitled to reach the conclusion that he did, particularly in the absence of any evidence from the applicant to contradict, explain or undermine the prosecution case against him. None of the matters put forward by the applicant persuaded us the judge was wrong in his conclusion.

24. We did not find the conviction against the applicant in any way unsafe or unsatisfactory. His application for leave to appeal against conviction was therefore refused.

Grounds of Appeal Against Sentence

25. Mr. McGowan suggested the starting point of 6 years was manifestly excessive. He also complained that the judge was wrong in treating the applicant as a person without a clear record simply because there was a binding-over order against him.

26. The applicant was involved in a case of assault occasioning actual bodily harm. On 20th August 2002, he was convicted and bound over for one year in the sum of $500. However, there are the additional notes to his criminal record in the following terms: NOT TO BE TREATED AS CONVICTION RECORD-ONLY FOR COURT PURPOSE.

27. Mr. McGowan accepted the seriousness of an unprovoked and potential serious attack on a victim who was not in a position to defend himself. However, he emphasized that the attack was not premeditated and that the weapons used were not as lethal as knives, water pipes, iron bars, metal hooks or the like.

28. Mr. McGowan also cited a number of wounding cases to show that the sentences in those cases were less severe than the six years' imprisonment imposed on the applicant.

29. This Court has emphasized the seriousness of an attack on the head of a victim with lethal instrument because of the potential injuries that such attack caused. (See the judgment in Secretary For Justice v Ma Ping Wah [2002] 2 HKC 566)

30. Further, what the applicant did with his accomplices was a deliberate and vicious attack on a single victim who was unable to defend himself. The attack was also entirely unprovoked.

31. Despite Mr. Castro's attempt to escape from the applicant and his accomplices, he was hotly pursued until he was apprehended. He was kicked and then attacked with a stick, and a heavy piece of concrete (irregular in shape with sharp edges and measuring about 12 inches times 4 inches), causing serious injuries to his head and back.

32. It was fortuitous that Mr. Castro suffered no permanent injuries, but he was hospitalized for about two weeks.

33. In his reasons for sentence, the judge comments: "It has not been established beyond reasonable doubt that you [the applicant] used either the rock or the stick and I deal with you on that basis."

34. The judge's finding indicated that he was unsure of Ms Ere's evidence as to what role the applicant actually played in the attack.

35. The judge did say if it were established that the applicant actually used the piece of concrete in the attack, the term would have been seven years' imprisonment.

36. The use of a piece of concrete and a stick by the applicant's group supported Mr. McGowan's submission that the attack was unpremeditated.

37. The attack was inexplicable, but appeared to be a momentary act of violence as a result of a sudden outburst of temper.

38. However, the attack on Mr. Castro was a vicious one and in a case of joint enterprise, the individual roles of different participants in the crime is not an important factor on sentence as they must be assumed to have been aware of, and have intended the acts of the other accomplices.

39. The applicant clearly intended the assault on Mr. Castro. He might not have intended the use of a piece of concrete or a stick in the assault at the outset, but he continued to take part in the attack after the piece of concrete and the stick were produced. His role was no different from that of his accomplices who actually used the piece of concrete and the stick to attack Mr. Castro.

40. The attack resulted in very serious injuries to Mr. Castro's head and back as shown in his medical report and photographs.

41. Savage and unprovoked attacks such as this must be deterred.

42. We did not agree with Mr. McGowan's suggestion that a piece of concrete must necessarily be of a "lesser quality" than knives, pipes or metal hooks. In fact the piece of concrete, with its weight and sharp edges, was a most vicious one when used as a weapon.

43. That the applicant did not carry any weapons, and that the use of the piece of concrete and a stick might not have been initially within his contemplation, did not in our view reduce the seriousness of the case.

44. We have had regard to the sentences imposed in other wounding cases referred to by counsel.

45. Those cases were not cases on tariffs of sentence. Each case must also be decided on its own facts.

46. In view of the serious injuries to Mr. Castro, particularly those to his head, we were not persuaded that the sentence of six years' imprisonment was either manifestly excessive or wrong in principle.

47. Whether the binding over order imposed after conviction on the applicant could be treated as a previous conviction, the judge was entitled to take it into consideration.

48. It was not the label on, but the substance of the applicant's conduct, which was relevant. The court must be presented with full information on the applicant to be able to impose a proper sentence.

49. In The Queen v Chan Ka-choi [1988] 1 HKLR 530, Power JA wrote at p. 533 of his judgment:

"The Courts, however, would, if such information cannot be disclosed to them, be prevented from making an informed assessment as to the proper punishment. It must be borne in mind that the making of a proper assessment is an issue which concerns not just the individual offender but also the community at large."

50. Having had regard to the applicant's "previous appearance before the Court on another offence involving violence", the judge was entitled to take the view that there should be no discount on the starting point adopted by him.

51. There was no merit in the complaints against the judge's approach to the binding-over order either.

52. The application for leave to appeal against sentence is also refused.