HKSAR v. BROWN JAMES MCCREADIE

DCCC 471/2020

[2021] HKDC 184

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 471 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant faced three charges at the trial. He was convicted of (1) a lesser charge of section 19 under the Offences Against the Person Ordinance, Cap 212 (“Charge 1”) and (2) indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200 (“Charge 2”).

2.  The offences were committed on 15 April 2020 and the defendant was arrested on the following day.  He has been remanded in jail custody since then. 

3.  The facts are set out in the Reasons for Verdict handed down on 9 February 2021.  In summary, the victim in this case was a sex worker.  The defendant met X on the street and the parties were about to have the transaction inside a room where X lived.  They had certain verbal exchanges and the defendant left the room without having sex with X.  When they were leaving, the defendant suddenly hit X and had caused grievous bodily harm to the victim by one hard strike.  He hit the victim’s head with his forearm, rendering her unconscious and falling to the ground immediately as shown in the CCTV.

4.  Subsequently, the defendant walked a few steps away from the victim who was lying on the floor right after the attack.  The defendant then returned a few seconds later and started molesting X by touching her pubis region while she remained unconscious.

5.  The defendant left the scene.  On the following day, he was arrested by the police.

6.  According to the medical report of the victim, X suffered from various injuries including “tenderness of head and face, blood clot in right ear and suspected right hemotympanum[1]” and “linear fracture of the right temporal bone associated with effusion in the right middle ear, fracture at base of 5^th metatarsal without significant displacement, and right concha was blood stained … over the inferior deep external auditory canal.  Pure tone audiometry showed right conductive hearing loss”[2].

Mitigation

7.  The defendant is 33 years old.  He was born in Scotland.  His parents and sister are living in Scotland.  The defendant came to Hong Kong on 6 March 2020 as a tourist.  He planned to leave Hong Kong on 1 September 2020. Nevertheless, he was unable to do so due to the present case.

8.  He has a criminal conviction for an offence of common assault which he committed whilst he was remanded in jail custody for the present case.  His previous good character was taken into account during the trial in his favour and the same applies for the purpose of sentencing.

9.  It was submitted that credit should be given to the defendant for the fact that the defendant had at one stage offered to plead guilty not only to a lesser charge of section 19, of which he is now convicted, but also to both Charges 2 and 3 (a Theft charge) by way of representation to the Department of Justice.  It was therefore said that credit should also be given to the defendant on Charge 2.  It was stressed that X would then not be required to testify in court had that plea proposal been accepted by the Prosecution. 

10.  The Defence indicated at the outset of the trial that the defendant would plead guilty to the lesser charge.  In the normal course of event, a full one-third discount should be given when the Prosecution failed to bring home the original charge.  At the trial, there was submissions of no case to answer and the same argument was adopted in the closing submissions that the Prosecution had failed to prove the element of “grievous bodily harm” which is a common element for both the original charge of section 17 and the lesser charge that the defendant is now convicted of. 

11.  Defence counsel is obviously bound by his instructions to test the case of the Prosecution.  This is a free choice on the part of the defendant. However, this approach is inconsistent with his indication to plead guilty to the lesser charge.  I have considered the case of HKSAR v Leung Yuk Ping CACC182/2018 and also the case of HKSAR v Lam Kai Man [2020] 4 HKLRD 107 in which the Court of Appeal remarked:-

“54. Secondly, the defendant should adhere to his stated position for the remainder of the proceedings. By this, we do not in any way mean to limit the right of a defendant to a trial or to conduct his case in any way he sees fit. We are only concerned with how a court should assess a claim by a defendant to a sentencing discount as a result of his earlier offer of a plea of guilty.”

12.  I noted that the challenge against the seriousness of the injuries was made merely by way of submissions.  The Defence did not do cross-examination to highlight this point nor was the medical evidence was subjected to challenge at any stage.  It is clear that the defendant did not adhere to the plea he had indicated.  In all the circumstances, it is apparent to the court that the defendant has not been truly remorseful.  When he expressed his apologies in court to the victim and instructed his counsel to do the same to the victim, it was nothing but a strategical and purposive move.  Had the challenge of the Defence gone further and touched upon the evidence on the injuries, I would have no hesitation to order a less than one-third discount against him on the present Charge 1.  Having carefully considered this matter, I am prepared to give credit to the plea the defendant had indicated for Charge 1.  And I am of the view that a one-third discount is still appropriate for the present Charge 1.

13.  Going back to Charge 2, the Defence submitted that credit should also be given to the defendant when he had made the proposal to that effect before the trial commenced.  I do not accept that submissions.  The fact remains that the defendant had entered a not guilty plea to Charge 2 and Charge 3.  X was required to testify because of the decision of the defendant.  The defendant is entitled to defend the charges, but it would not be right for him to be able to get any credit for something he had withdrawn.  Again, the defendant had a choice.  He had chosen to depart from his previous position and entered a not guilty plea.

14.  I also rejected that there is any exceptional hardship for the defendant to serve a custodial sentence in Hong Kong.

15.  I took that the defendant had a clear criminal record on the strength of the Admitted Facts.  It was then revealed that the defendant was recently convicted of common assault which took place after the present case.  For that offence, the defendant was sentenced to 2 months’ imprisonment.  Nonetheless, for the purpose of sentencing in the present case, the defendant is entitled to receive the consideration that a first offender should be given.

16.  It was also repeated that no weapon had been used in this case and there was no evidence to indicate whatsoever that the offences were pre-meditated. It was suggested that a 9-month starting point is appropriate for the present Charge 1 (section 19) and that the sentences for Charges 1 and 2 should be concurrent.

Consideration and Sentence – Charge 1

17.  In relation to Charge 1, the maximum sentence of an offence of inflicting grievous bodily harm contrary to s 19 of the OAPO is 3 years.  There is no sentencing guideline, and each case must be dealt with on its own facts and circumstances.

18.  According to the CCTV footage, before hitting the victim’s head, the defendant had smacked her phone to the floor while she was using it.  No sooner had the victim picked up her phone and tried to call the police, the defendant then walked near to her again and gave her a strike to her head.  The victim would not have seen the assault coming as she was using her phone. In a split second, the victim lost consciousness.

19.  The defendant is a well-built man.  He was fully aware that what consequences his attack would bring to X.  The injuries caused to X were very serious.  It is fortunate that the victim has recovered.  However, she still complains of headache and dizziness from time to time.

20.  The Defence provided to the court a number of cases tried in the District Court and one in the Court of First Instance.[3]

21.  I have also considered all the mitigations put forward. 

22.  I accept that this is not a case of premeditation, nor any weapon was involved whereas the cases relied upon by the Defence all involved a weapon of some sort. 

23.  Regarding a one-punch situation resulting in serious injuries with no premeditation, the Court of Appeal in HKSAR v Chan King Yun James (陳敬胤) (unreported, CACC 384/2011, 21 June 2012) dismissed an appeal against sentence of 20 months’ imprisonment regarding his conviction of a charge of inflicting grievous bodily harm, contrary to section 19 of the OAPO.  This case occurred in the course of a basketball game, the appellant thrust back his elbows into the body of the victim when having his back to the victim, then turned around and punched the victim in his face.  Subsequently, the victim fell backwards, hitting his head on the ground.  The victim suffered serious injuries to the extent that required around-the-clock care.

24.  The trial judge adopted a starting point of 2 years’ imprisonment.  The Court of Appeal noted that four months’ discount had already been given after considering the mitigating factors that “the assault consisted essentially of a single punch, a blow delivered in the heat of the moment without any premeditation, and that the devastating consequences could not have been intended” (§18).

25.  The Court of Appeal also agreed that it was appropriate for the trial judge to take into account the grave nature of the injuries given that there is no undue emphasis placed on the nature of the victim’s injuries (§20).

26.  I find the present case a serious one.

27.  Firstly, as opposed to having a basketball game where a certain degree of bodily contact or injury was anticipated, the victim in this case was placed in a comparatively vulnerable position as it is clear that the defendant was a well-built man and whatever exchanges had taken place between them, X would not have foreseen that the defendant would hit her and hit her that hard. 

28.  Secondly, the defendant knew that X was standing near a wall and the attack would cause her head or body to bump against it.  Whilst I accepted that the defendant did not intend to cause X very serious injuries and that the defendant might be doing it in the heat of anger, the consequences were very serious.  X fell onto the ground immediately and became unconscious instantly. The injuries caused to X were clearly grievous bodily harm. 

29.  Having considered all the circumstances in the present case, a starting point of 15-months’ imprisonment is adopted for the section 19 offence.  The plea of guilty afforded the defendant a one-third discount.  The sentence then becomes 10-months’ imprisonment.  I see no further reduction is justified.

Consideration and Sentence – Charge 2

30.  After committing the aforementioned offence, instead of fleeing from the scene, the defendant turned around and walked towards the victim, who had already been knocked out, lying on the floor.  The defendant leaned over and took advantage of the victim’s unconsciousness and molested the victim.

31.  The defendant brazenly fondled the victim’s vagina, but not the pelvis as alleged by the defendant, outside her skirt with his right hand for around 2 seconds before reaching for the handbag of the victim.  Around half a minute later, the defendant touched and rubbed the victim’s vagina with his right hand again for around 3 seconds.

32.  The CCTV footage revealed that the victim had been knocked out by the defendant.  It must be clear to the defendant that the victim was in a state of unconsciousness at the material time.  The gravity of the offence was that the indecent assault was done to an unconscious and most vulnerable woman.

33.  There was no sentencing tariff for indecent assault.  Each case again has to be decided on its own facts.  In HKSAR v Chan Ching Ho, Owen [2000] 3 HKLRD 476, the Court of Appeal affirmed the three sentencing considerations identified by the trial judge, namely (1) the need to deter others; (2) the need to mark the public abhorrence of such crimes; and (3) the need to redress the grievance suffered by the victim, her relatives and friends.

34.  Indecent assault is a very serious offence.  The maximum sentence, as stipulated in section 122(1) of the Crimes Ordinance, Cap 200 is imprisonment for 10 years.

35.  A deterrent sentence is called for given the extent of indecency and the fact that the defendant was taking advantage of the victim’s unconsciousness at the material time.  The defendant pleaded not guilty to this charge and was convicted after trial.  X had to be called to testify and identify herself by watching the video that captures the humiliation the defendant had done to her. The defendant is entitled to plead not guilty to the charge, but it does not detract from the fact that the defendant had made up a story with a view to explaining his conduct which is clearly an indecent assault.  No remorse whatsoever was shown at all in respect of this charge.  I consider a substantial term of imprisonment is inevitable.

36.  I have considered the case of HKSAR v Kong Wah Sang (江華生)(unreported, HCMA 1112/2000, 29 November 2000).  In that case, the offence was committed on a bus.  The appellant touched the victim’s vagina with his left index finger and middle finger.  He pleaded not guilty to the offence and was convicted after trial.  He was sentenced to 3 months’ imprisonment by the trial magistrate.  The appeal against conviction was dismissed and the sentence was not disturbed.  I consider that the present case is more serious.

37.  I bear in mind that the defendant had a clear record, and the touching of the victim’s vagina was made outside the victim’s skirt and underwear. Notwithstanding that, the conduct of the defendant is outrageous and despicable. I consider that an appropriate starting point for the indecent assault in this case is 6-months’ imprisonment.  Taking into account all the mitigations, I, however, do not see any reduction is appropriate.

Overall sentence

38.  The offence of inflicting grievous bodily harm is part of the background of the indecent assault, but it is clearly a separate offence.  I consider a partial consecutive sentence is appropriate.  Bearing in mind the totality principle, I order 5 months of the sentence of Charge 2 to run consecutively with the sentence of Charge 1.

Order

39.  In total, I therefore sentence the defendant to 15 months’ imprisonment for Charge 1 and Charge 2.