HKSAR v. CLIFFORD MARTIN FRANK

HCMA 1113/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1113 OF 2001

(ON APPEAL FROM SPCC 2587/2001)

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J U D G M E N T

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1. This Appellant was convicted, after trial, on 2 counts of Wounding, contrary to Section 19 of the Offences Against the Person Ordinance, Cap. 212. The Appellant was sentenced to 18 months' imprisonment on each charge and the sentences were ordered to run concurrently. He appeals against those sentences.

2. The first and major ground of appeal was that the Appellant relied on legal advice the consequences of which were to deprive him of mitigation which would have reduced the length of a custodial sentence.

3. Ground 2 was that no, or insufficient, regard was paid by the Magistrate to the personal consequences distinctive to the Appellant resulting from the convictions and the custodial sentences passed.

4. Ground 3 was that it was not appropriate for the Magistrate to rely on the observations of the Lord Chief Justice in R v. Goodwin and others (1999) 2 Cr. App. R. 128 CA, when sentencing for an offence contrary to Section 19 of the Offences Against the Person Ordinance, Cap. 212, as Goodwin related to a charge similar to S. 17 of that Ordinance.

5. The facts found by the Magistrate show that the two male victims were drinking in a bar in Hanoi Road, Tsim Sha Tsui and while there, were assaulted by a Western male, the Appellant, and a number of Chinese men. There was no evidence as to the reason for, or cause of, the attack.

6. PW1, the first victim, was attacked with a wooden pole, kicks and fists. The Appellant was seen using a stool to hit the head of the first victim. His injuries were 3cm and 2cm lacerations over his scalp.

7. The second victim (PW2) said that he was dragged out by the Appellant who punched him on his forehead; he was further assaulted by the Chinese men in the group with fists and kicks. He was sent to hospital for treatment also and his head wounds required 3 stitches.

8. A woman customer (PW3), who knew PW2, but not PW1, said she saw a Western male come to the bar bringing a number of men with him and she saw him use a stool to hit PW1. She confirmed that one of the attackers used a truncheon during the attack and she saw a plainclothes officer subdue the Western male, to stop him from further assaulting the victim.

9. The plainclothes officer, PC 48933 Chan Kam-tim, PW4, confirmed that he heard a commotion at the bar and saw people gathering. He went with a colleague to see what happened and saw the Appellant holding a stool and chasing PW1 to hit him. He said that PW1 fell to the ground and at that stage he went up to subdue the Appellant. On being arrested, the Appellant said he had not hit anybody and questioned the officer as to why he was arrested.

10. At trial, the Appellant elected not to give evidence and the Magistrate, in his Statement of Findings, confirmed that he had not drawn any adverse inferences from his not doing so and that he had given the Appellant the benefit of a direction as to propensity.

11. The Appellant now claims he had been advised wrongly that he had a defence and was advised not to give evidence at trial. He relied upon the advice without fully understanding the consequences of accepting it.

12. Counsel endeavoured to argue that this was wrong advice and if the Appellant had pleaded guilty as, allegedly, he wished to do initially, the Magistrate could have taken a starting point of 18 months, and, giving credit for his plea, reduced that starting point by the customary one third, to 12 months. Further, if the Appellant had given evidence, the Magistrate would have heard an explanation for the incident which would have obviated any sinister interpretation being attributed to it. Such explanation may have led to a lower starting point being adopted.

13. There is nothing in this ground of appeal which leads me to believe that the Magistrate was in any way incorrect in adopting the approach he did to the sentence. Nor are there grounds for accepting that the Appellant was badly advised. It is often a fine question of strategy and tactics as to whether or not a legal representative advises a client whether or not to give evidence. The Appellant, having taken advice, elected not to give evidence or call witnesses.

14. Whatever the Appellant now tells the court by submission through his counsel, it is purely a matter of speculation as to what might have happened, if he had given the purported mitigating factors that he now gives, to the court. These were that he had been drinking excessively; he had an argument in the bar with his wife; that offence had been taken by PW1 and PW2 to his manner; and Chinese friends of the Appellant chose to take the two victims outside where the attack took place and, without any justification, the Appellant participated.

15. This was a serious attack in a public place. On the evidence it was unprovoked. The evidence indicated that this Appellant was leading or directing the group. Even if it was shown to have been an attack in response to an alleged interference by the victims in a husband and wife dispute, this was certainly a disproportionate response and would have been dealt with seriously by any Magistrate. I do not consider there is any substance in the first ground of appeal.

16. On ground 2, it was submitted that because this conviction may put the Appellant at risk of being deported, he being resident in Hong Kong only on a Dependency Visa, the Magistrate could have, or should have, altered the length of the sentence to take that into account. I cannot see how the Magistrate could properly or reasonably have taken such a consideration into account in assessing the length of sentence and I dismiss this ground of appeal.

17. Mr Burkett, representing the Appellant, was good enough to say he was not relying on the third ground very seriously. This was a complaint that the Magistrate should not have referred to the observations of the Lord Chief Justice in R v. Goodwin and others (1999) 2 Cr. App. R. 128 CA made by him when sentencing for an offence, equivalent not to Section 19 of the Offences Against the Person Ordinance, but to Section 17 of the Offences Against the Person Ordinance. There is nothing in this ground either.

18. The Magistrate was entitled to have regard to the matters referred to by the Lord Chief Justice; he was aware that the Lord Chief Justice was dealing with the equivalent of a Section 17 charge. The quotation of which Mr Burkett complained was this:

"For an offender who had committed such an offence, there was a legitimate public expectation that he would be severely punished to bring home to him the gravity of the offence and to warn others of the risk of behaving in the same way. If such punishment did not follow, public confidence in the administration of the criminal law was weakened and there would be a temptation on the part of some to exact their own retribution. And, as to the victim, punishment could not heal wounds but inadequate punishment could add insult to the injury."

19. Those observations are pertinent equally to offences under Section 19 and Section 17. As to the length of the sentences in this case I am satisfied that the Magistrate properly imposed stern sentences for these offences. The first victim suffered lacerations over his scalp. The second victim suffered lacerations which required stitching. More seriously, he suffered a subdural haemorrhage in the right motor cortex which affected his left hand's strength. This required him to be referred to a physiotherapist and an occupational therapist for retraining of his left hand.

20. Offences of this nature demand deterrent sentences. It is from a fracas like this that many deaths have resulted in the past. Patrons in a bar, or citizens in other public areas, are entitled to conduct their lives in peace without having marauding groups seeking retribution for real, or, as is usually the case, imagined, insults or injuries. Disproportionate responses to minor disputes or arguments, and unprovoked attacks are all too common in Hong Kong. Magistrates when dealing them should impose heavy sentences where they are warranted, as I consider they were in this case. The appeal against sentence is dismissed.