HKSAR v. GURUNG TIKARAM

CACC 532/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 532 OF 2003

(ON APPEAL FROM DCCC NO. 806 OF 2003)

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J U D G M E N T

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Hon Woo VP:

1. The applicant was convicted on his own plea of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212, before Judge Sweeney in the District Court.

2. The facts are very simple. All involved persons are Nepalese. The victim and PW2 were security guards employed by the Joe Bananas bar in Wanchai. At about 0645 hours on 20 July 2003, they had left work after the night shift and were walking home. The applicant, a stranger to the pair, suddenly approached the victim from behind and used a knife to stab him several times in the back. The applicant fled, but was eventually caught by the victim and his companion. Before the police came, the applicant had disclosed to the victim that he had been paid by a Nepalese man to teach the victim a lesson or to hit the victim.

3. When pleading guilty, the applicant admitted the facts, save as to the truth of the motive behind the commission of the attack that he had divulged to the victim. His case was that he stabbed the victim on a sudden impulse over some trivial bumping in the street. As a result, a Newton Enquiry was held, during which the victim and his companion gave evidence.

4. The judge did not believe the applicant and found for the prosecution's case beyond a reasonable doubt. He adopted a starting point of 5 years' imprisonment for the offence, noting that the applicant had a previous record of possession of an offensive weapon in a public place in September 2000. In not giving the applicant the usual one-third discount for his plea, the judge said:

"Ordinarily, had the defendant pleaded guilty and agreed the facts at the start of the day this morning, there would be a one-third discount, but because he has obliged the prosecution to conduct an unnecessary Newton Enquiry, I will give only a 20 per cent discount for this limited plea of guilty."

5. In his notice of application for leave to appeal against sentence, the applicant stated that he was not satisfied with the sentence because it was not fair. Moreover, his father was ill in Nepal and he had to go back as soon as possible. He further stated that:

"It's my small case only. Hope you will understand that."

6. Regarding the commission of the offence, the judge said:

"I believe the prosecution case that this was a vicious, planned attack on a stranger for reward. Even had I believed the defendant's version of events (which I did not), that he had stabbed a man twice in the back on a sudden impulse over some trivial bumping in the street, he would still present as a danger to society."

7. The victim was found to have sustained stabbed wounds on the back, swelling on the face and a 3-cm laceration on the head.

8. Based on the facts as found by the judge, I am of the view that the starting point of 5 years' imprisonment as adopted by him cannot be considered to be manifestly excessive. Moreover, the judge was justified in not allowing the usual one-third discount for the applicant's plea of guilty. In HKSAR v TONG Kim-ching, CACC 481/2001 (28 May 2002), Stock JA said:

"7. There are two grounds of appeal. The first is that the judge erred in not giving the applicant a full one-third discount for his plea. We do not agree. It is too well established to require a recitation of authorities that a challenge to the facts, if unsuccessful, may, depending on the circumstances, place a defendant in a position less advantageous than had he pleaded guilty and accepted the true facts of the case. In this case, the challenge to the facts was one that required the victim to give evidence of what transpired. But, more particularly, it was a material challenge and the tenor of the applicant's evidence, which we have read, was one of suggested justification for what he did, a tenor and detail which indicated little remorse, if any, for his conduct."

9. The same observation can be similarly applied to the present case. In my judgment, the judge was fully justified in allowing only a 20% discount for the applicant's plea. The Newton Enquiry was required because of the denial of the applicant of what he had told the victim before his arrest. That necessitated the victim and his companion giving evidence before the judge. The whole matter showed a lack of remorse on the applicant's part and as it turned out had wasted the court's time. Moreover, the way that the applicant states his grounds of appeal gives rise to the impression that he treats the offence as a small case, the contrary of which is true because it was in fact a serious premeditated attack. This also demonstrates little remorse on his part.

10. As to the applicant's wish of returning to Nepal as soon as possible to see his father who is alleged to be ill, there is no evidence to support the alleged illness. Even if the allegation is true, it is only necessary for me to recite the observation of Nazareth VP in The Queen v Wong Wai-lun, Crim App No. 512 of 1996 (7 March 1997):

"It is well established that the care the parents may need is not a good ground for reducing sentences. If one is concerned about one's parents, one should avoid in the first place getting involved in this sort of offence which inflicts great misery on the parents of those who get addicted to such drugs."

11. One needs only to replace "addicted to such drugs" at the end of the cited passage with "subjected to such vicious attacks" to fit in the circumstances of the present case.

12. I consider that there is absolutely no substance in the applicant's application, which must be dismissed.

13. The applicant is entitled to renew his application for it to be determined by the Court of Appeal. If he wishes to make a fresh application, it must be made within 14 days after the posting or handing to him of Form XIII. He should return the Form XIII duly filled in for that purpose as soon as possible.

14. However, I should warn the applicant that when dealing with the fresh application, if the Court of Appeal is of the view that his application has no merit, it could order a loss of time spent in custody to be taken away from the counting of the service of the imprisonment. Moreover, the Court also has power to increase sentence.