HKSAR v. CHAN LEK SUN also known as CHAN LEK KAN

CACC 188/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 188 OF 2014

(ON APPEAL FROM DCCC NO. 1036 OF 2013)

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J U D G M E N T

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1.  The applicant seeks leave to appeal against sentences of 56 months’ imprisonment imposed on him by District Court Judge Browne on 9 May 2014 following his convictions on his own pleas of guilty to four offences of wounding, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212. Two other charges of wounding arising from the same events were left on the Court file, marked not be proceeded with without the leave of the court.

2.  The charges related to events that occurred at about midnight on 4 and the early morning of 5 June 2013 at Comet Lounge Karaoke, G/F, No. 116 Hing Lung Main Street, Cheung Chau (“the premises”). 

Facts

3.  As the judge noted in his Reasons for Sentence, the victim in Charge 1, Ms Ng Ka Ling and her friends including Mr Choy Yu Hei, Mr Chan Kwun Hin and Mr Wong Cho Wai, victims in Charges 2, 5 and 6 respectively, went to the karaoke premises to celebrate Ms Ng ka-ling’s birthday.  At about midnight, three males including the applicant were observed standing at the back door of the premises putting on surgical masks and Balaclavas. Some of them were holding ‘beef knives’.  Then, they rushed into the premises and attacked Ms Ng Ka Ling.  Shortly afterwards, another group of four to six attackers holding either metal pipes or ‘beef knives’ ran into the premises from the front door and attacked Ms Ng Ka Ling and other members of her party. Responding to a shout from behind, Ms Ng Ka Ling turned around, only to be struck a blow to her head with a hard object. 

4.  Another attacker pointed a beef knife at Mr Choy Yu Hei,  who raised his hand to fend off the attack, and chopped him two or three times.  Mr Chan Kwun Hin intervened when he saw a balaclava clad man attacking one of his friends.  He succeeded in pushing the attacker to the floor.  There, Mr Wong Cho Wai pulled the surgical mask and balaclava from the attacker’s face and head, revealing the attacker to be the applicant.  The applicant used the beef knife to slash Mr Chan Kwun Hin and Mr Wong Cho Wai.  At the same time, other unknown males holding metal pipes or beef knives attacked other victims. Afterwards, the applicant and the other men fled.  When Mr Wong Cho Wai gave chase, a male hit his head with a metal pipe. 

5.  The applicant himself sustained injuries and sought assistance from the police.  He was sent to a nearby hospital for treatment. Four friends of Ms Ng ka-ling, who were also in the hospital seeking treatment, identified the applicant as one of their assailants.  Having been arrested and cautioned, subsequently the applicant was identified by Mr Choy Yu Hei and Mr Wong Cho Wai at an identification parade.

Injuries

6.  Ms Ng ka-ling sustained a 6 cm laceration over her forehead, which partially extended to her skull, and a laceration to her right arm, which lacerations were sutured and she was discharged on the same day (1^st Charge).  The photographs depict the multiple sutures used to treat the wound to her forehead and scalp and show that it emerges from her hairline to the forehead.  It is likely to be visible in the future as a scar, which fact is relevant given that she is a young lady.  The wound to her arm was obviously caused by a chopping blow being delivered to her.  The photograph depicts the gaping wound held together with tape.  Mr Choy Yu Hei sustained cut wounds to his left arm and knee (2^nd Charge) and was hospitalised for three days.  The photographs depict multiple chop wounds to his left arm, fingers to his left hand and left knee.  Four sutured wounds are depicted to the outer aspect of the left forearm, all of which are clearly caused by a blow delivered as a chop.  Sutured wounds to the inner aspect of the left wrist encompass all of the inner aspect of the wrist.  Two sutured wounds are depicted to the left knee.  Mr Chan Kwun Hin PW5 had a laceration on his left axilla (3^rd Charge); and Mr Wong Cho Wai PW6 had lacerations on both hands and right arm (6^th Charge).  No photographs are available of those injuries.

Reasons for sentence

7.  In his Reasons for Sentence, the judge noted that the applicant was 30 years of age and had appeared in court on four occasions resulting in six criminal convictions.  In 2002, the applicant was sentenced to 14 months’ imprisonment for robbery; in 2005, he was sentenced to a Drug Addiction Treatment Centre for drug-related offences; in 2009 he was sentenced to 6 months’ imprisonment for assault occasioning actual bodily harm and in 2010, he was fined $1,000 for fighting in a public place.

8.  The judge noted that it was submitted that the applicant participated in the attack as a misguided act of loyalty towards one of the attackers, who had a conflict with one of the victims relating to a woman.

9.  In sentencing the applicant, the judge said that the offences committed by the applicant were particularly serious and premeditated, observing that it must have been a terrifying experience for the victims, the staff of the premises and any members of the public who happened to be present.  The judge went on to say that it was fortunate that no permanent injuries were sustained by the victims.  Further, he said that the applicant could count himself as “very fortunate” that his case had been allowed to proceed in the District Court rather than the High Court.

Starting point

10.  The judge stipulated a starting point for sentence for each of the four charges of 7 years’ imprisonment.  He discounted the sentence for each charge by one-third to give credit for the applicant’s guilty pleas.  Then, he sentenced the applicant to 56 months’ imprisonment on each charge.  Having observed that all the offences were committed in one concerted attack on the victims, the judge ordered that all the sentences be served concurrently.

Grounds of appeal against sentence

11.  The sole ground of appeal against sentence advanced in Form XI of the Criminal Appeal Rules, Criminal Procedure Ordinance, Cap. 221 is that the sentence was excessive.  In his oral submissions, the applicant invited the Court to have regard to the judgment of the Court in the Secretary for Justice v Hau Ping Chuen[1], in which the appropriate starting point to be taken for sentence in various cases of wounding with intent were reviewed.  The judgment was provided in the respondent’s bundle of authorities in any event.

A consideration of the submissions

12.  The judgment of this court in the Secretary for Justice v Hau Ping Chuen is no particular assistance to the applicant.  As Stuart-Moore VP noted, in the judgment of the Court on an earlier occasion the range of sentences imposed for an offence of wounding with intent varied from “ 3 to 12 years’ ” imprisonment, although he went on to say that a greater or lesser sentence might be appropriate in particular circumstances.  Clearly, the appropriate sentence to be imposed for the offence is fact sensitive.

13.  The judge was correct in describing the offences as “particularly serious”.  As he noted they were premeditated and occurred in a public place.  Multiple armed attackers were involved.  Further, the attack was concerted and conducted in a way which trapped the victims and others inside the premises as the attackers came first from the rear door and then from the front door to the premises.  The judge was fully justified in describing the attack as “terrifying”. Ms Ng Ka Ling was struck a blow to her head, which caused a laceration across her forehead and onto her scalp. As the judge noted it was “entirely fortuitous” that the applicant was not facing a more serious charge.

Conclusion

14.  In the result, I am satisfied that it is not reasonably arguable that the sentences imposed on the applicant are manifestly excessive.  Accordingly, the application for leave to appeal against sentence is dismissed.

[1] Secretary for Justice v Hau Ping Chuen [2008] HKLRD 673.