HKSAR v. LEE SIU NAM

CACC 318/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 318 OF 2011

(ON APPEAL FROM HCCC NO. 388 OF 2010)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon McWalters J (giving the reasons for judgment of the court):

Introduction

1.  The applicant was tried with 3 others in the High Court before Deputy Judge Stuart-Moore on an indictment which charged them with the offences of robbery, contrary to section 10(1) and (2) of the Theft Ordinance Cap 210, wounding, contrary to section 19 of the Offences Against the Person Ordinance, Cap 212 and administering a noxious thing with intent to injure, contrary to section 23 of the Offences against the Person Ordinance.

2.  At the outset of the trial D4 pleaded guilty to the robbery count and after a voir dire D3 also pleaded guilty to it.  The trial of the applicant and D2 then proceeded and on 26 July 2011 D2 was convicted of the robbery offence and the applicant of the wounding offence.  The jury had been directed not to return a verdict in respect of the count of administering a noxious thing and this count was ordered to be left on the court file.  The following day the applicant was sentenced by Deputy Judge Stuart-Moore to imprisonment for 2 years 6 months.  He now applies for leave to appeal his sentence.

The Background to the Offences

3.  The prosecution case was that on 24 May 2010, two Mainland persons came to Hong Kong from Shenzhen to deliver a suitcase containing 30 bars of platinum, worth approximately HK$12 million dollars.  They were alighting from a taxi in Sheung Shing Street, Ho Man Tin when they were set upon by D2 to D4 who were intent on robbing them of the suitcase containing the platinum bars.  The victim holding the suitcase was attacked with a hammer, and possibly a spanner, and the other with an aerosol pepper spray.  A vigorous struggle with the victims then took place, in the course of which the one who was assaulted with the hammer suffered head injuries.  Ultimately, the victim in possession of the suitcase was forced by the attack on him to relinquish it and the robbers escaped in a motor vehicle bearing false number plates that was driven by the applicant.

4.  Subsequently, a prosecution witness saw the false number plates being removed from the motor vehicle and informed the police of the car’s true number.  Soon afterwards the applicant was arrested at a police roadblock but the platinum bars were never recovered.  At the time of trial the victim who had been assaulted with the hammer still felt occasional pain in his head for which he was taking medicine.

5.  Although the prosecution case alleged the applicant to be part of the robbery, the jury convicted him of only the wounding offence.  The wounding offence related to the victim who had been assaulted with the hammer, not the victim who had been assaulted with pepper spray as this conduct was the subject of the third count in the indictment.  The applicant testified at trial and his case was that he knew nothing about the robbery until it actually happened.  He claimed that he had been told that there was a plan to beat up two people whom he had never met.  He said that he knew that the victims were likely to suffer cuts and bruises while they were being “taught a lesson” by the other defendants.  He understood that his only involvement was to be the getaway driver, driving his father’s car on false number plates.  He said he was offered $5,000 dollars for performing this task.

Mitigation

6.  The applicant was aged 33 years at trial and is married with a 2 year old child.  He was a vegetable wholesaler and of previous good character.  His parents told the court that they were shocked at his involvement in this case because they always regarded him as a law‑abiding, hardworking son.  However, it appears that the applicant became seriously indebted in selling or sub-selling milk powder in China.  His mitigation was that he thought that the assault would only involve the use of fists and that therefore no serious injuries were likely to be caused to the victims and that he behaved foolishly in a moment of greed and temptation in the face of his financial difficulties.  It was advanced on his behalf that the chance of him re-offending was very low.

The Reasons for Sentence

7.  In his reasons for sentence the judge referred to the attack upon the Mainland person who is the victim of the second count and the role played by the applicant in that attack.  He said:

“It is fortunate, indeed, that the hammer blow to Lin Chuangqin’s head, which caused him to bleed profusely, was confined to a relatively small wound. There is apparently no permanent brain damage. …. Blood was found in many places on the getaway car and elsewhere at the scene of the robbery.

Chuangqin gave evidence in the trial that to this day he frequently feels pain in his head for which he is still taking some medicine. There is no doubt that he fell over after he was deliberately struck on the head and it was soon after that that he began to feel dizzy. In fact, even though he was bleeding heavily from the head, he described how he was still being hit vigorously by the three people whom he said had set about him. It was only then that he let go of the suitcase. ….

I turn now to the first defendant ....

Your part was to drive your father’s car on false plates.  It is noticeable from the evidence that you obviously jumped at the chance knowing full well that you were taking three men to beat up two complete strangers who were likely to suffer cuts and bruises while they were, in your words, being taught a lesson.

There is no evidence on the second count of wounding, of which you stand convicted, that you knew a hammer was being carried before it was used, but for what you did there is simply no possible explanation, bearing in mind your background hitherto. ….

The maximum sentence for this offence is 3 years imprisonment.  There is no suggestion that any grievous bodily harm was ever intended and you are not charged with it, but the charge was contested by you so there is no real mitigation of any significance.”

He then sentenced the applicant to 30 months imprisonment.

Grounds of Appeal

8.  As we have already indicated there is in effect only one ground of appeal, namely “in the circumstances, the sentence of 30 months imprisonment is manifestly excessive and/or wrong in principle”.  The Perfected Grounds of Appeal also refer to the fact that the maximum sentence for the offence of wounding is 3 years, the applicant had a clear record and that he believed that all that was to happen was only a very trivial matter with fists only being used.  The Perfected Grounds of Appeal also refer to the fact that the victim only received a 1.5 centimeter laceration on top of his head and he complained of tenderness in the back of his neck.

9.  In support of this ground of appeal counsel for the applicant repeated the points contained in the Perfected Grounds of Appeal and also referred us to three judgments involving section 19 wounding.  The three judgments are HKSAR v Kwok Lan Bun, HCMA 572 of 2004, HKSAR v Lam Yiu Kam, CACC 286 of 2008 and HKSAR v Lo Kwok Tung, HCMA 940 of 2005.  On the basis of these judgments and the points made in the Perfected Grounds of Appeal and developed further before us, counsel for the applicant submitted that the sentence was manifestly excessive.

Discussion

10.  We shall firstly refer to the case authorities on section 19 wounding on which the applicant relies.  The first is HKSAR v Kwok Lan Bun where a prisoner who attacked a fellow inmate causing an injury to his eye was sentenced to 6 months imprisonment.  On appeal the Court of First Instance Judge expressed the view that the Magistrate erred on the side of leniency. There is nothing in this decision which provides us with any assistance.

11.  The second decision is HKSAR v Lam Yiu Kam.  This case involved an argument between the victim traffic warden and the defendant taxi driver. The argument between them escalated and at one stage the defendant pointed his right index finger at the victim and scolded him.  This gesture caused the defendant’s finger to come into contact with the lens of the victim’s glasses resulting in the lens breaking and pieces of the broken glass entering the victim’s left eyeball.  This defendant was sentenced to 2 years imprisonment which sentence was reduced on appeal to 21 months.  Again, this case is so dramatically different from the case of this applicant that it provides us with no assistance. The one thing which we do derive from this case is the comment by the Court of Appeal that there is no sentencing guideline in this type of crime, perhaps self-evident but nevertheless one worth repeating.  For this very reason attempts to draw assistance from other cases is not likely to be helpful.

12.  The final authority on which the applicant relies is HKSAR v Lo Kwok Tung.  This was a Magistracy appeal in which the appellant had been sentenced to 2 years imprisonment for two offences of section 19 wounding.  The conduct of the appellant was very serious indeed involving two attacks upon different persons by means of a broken wine bottle.  One of the attacks involved stabbing the broken wine bottle into one victim’s abdomen.  The second attack involved the use of the same broken wine bottle against the temporal area of a person who came to the aid of the first victim.  In commenting on this conduct, Deputy High Court Judge Toh (as she then was) said:

“However it was a pity that the appellant was not charged with the more serious charge under section 17 of the Offences Against the Person Ordinance ….”

In rejecting the appeal against sentence the Deputy Judge commented:

“I also agree that the learned magistrate had in fact passed a lenient sentence against the appellant. Therefore the appellant has no sufficient ground to appeal against sentence. The appellant should know that he is a very lucky person”.

It is apparent from this judgment that the Deputy Judge was seriously considering increasing the original sentence and was being critical of the choice of the charge for conduct as serious as this.

13.  Counsel for the applicant seeks to draw assistance from the cases maintaining that in terms of the seriousness of the injury caused they are comparable to the applicant’s case.  This with respect is not a matter of which a view could confidently be reached given the sparse information in those cases on the injuries to the victims and the similarly sparse information before us on the injuries, including residual disability, suffered by the victim in the present case.  But, more importantly, it should be noted that for the offence of wounding the seriousness of the injury will not be the sole determinant of the severity of the sentence.  The court will have regard to all of the circumstances, especially those that explain how the attack came to happen and the defendant’s involvement in that attack.

14.  That brings us to the mitigation that the applicant was not a party to the robbery and had no knowledge that weapons were to be used.  In the present case regard must be had to the verdict of the jury which clearly found in the applicant’s favour that he was not a party to the robbery.  It is useful to see just what the evidence was that underlay the jury’s verdict.  In the course of directing the jury on this issue, the judge quoted the evidence of the applicant which was as follows:

“That’s why it’s important to look at what he said when he was cross-examined, …. “Was it within your contemplation that the two people attacked would be beaten up?” The 1^st defendant said “Yes”. “So you contemplated the people attacked would suffer cuts and bruises?” “Yes.” “How much further did it go? Broken nose, maybe teeth?” “It didn’t occur to me, just told it was fist fights and to teach them a lesson.”

It follows from this that what the applicant agreed to was a joint enterprise to carry out an assault upon two persons and even though he believed that the assault was only to be in the form of a beating in which no weapons would be used, he realized this beating would result in cuts and bruises to the victims.

15.  Despite the efforts to trivialize the assault, the fact remains that the applicant knowingly lent his support, and as getaway driver it was very important, if not vital support, to a group of three persons whom he believed were going to attack two men.  As the attack was going to be for the purpose of teaching them a lesson it was clearly intended to be violent and to cause them harm. Although he may not have expected serious harm to befall the victim he could never have been sure what the outcome would be in terms of the injuries that may be caused to the victims.  Even a beating with fists can result in serious injuries.

16.  Furthermore, he knew that the criminal enterprise was to be a very carefully planned one as he was driving a motor vehicle with false number plates in order to avoid detection.  Finally, he was doing this for reward as a contract criminal and this, as was said in HKSAR v Tsang Ho Wai & Ors [2008] 4 HKC 1 at pages 11 I to 12 A, paragraph 46, aggravates the seriousness of the offence:

“An assault on a victim performed as a ‘contract’ should be regarded as an aggravated offence and sentencers should bear this in mind when selecting an appropriate starting point for sentence after trial.”

On the information known to the applicant this had all the hallmarks of a professionally planned contract assault.

17.  All of these features take the applicant’s conduct into the serious culpability range for this offence.  For such a level of culpability a starting point close to the maximum is not inappropriate.  His prior clear criminal record is of little value given his willingness to participate in such an obviously serious criminal enterprise.  Likewise in respect of his explanation of financial need as the reason for his participation.

Conclusion

18.  Though it cannot be said that this is in the range of worst possible cases, it is certainly at the high level of seriousness and even though the maximum penalty is only 3 years for such an offence as this the starting point of two and half years is not inappropriate.  We find no merit in this application for leave to appeal against sentence and we therefore dismiss the application.