R. v. SIN SIU LING

IN THE COURT OF APPEAL

1995, No. 132
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant seeks leave to appeal against the sentence imposed upon her in this case.

2. At the time of the offence she was working in a night club. She was a mamasan. The victim Mr Cheng Kam-chuen was a customer. About 7 days prior to the incident she lent him about $4,000 to enable him to pay his bill.

3. On the evening in question 4 November 1993 Mr Cheng attended at the night club. The applicant asked for repayment of the moneys she was owed. When he did not pay she took his portable telephone as security.

4. As might be expected there was some confusion as to exactly what happened next. It would appear that the jury accepted that a group of men assaulted Mr Cheng. They first assaulted him in the night club and then subsequently in the street. They kicked and punched him and hit him on the head with the portable telephone. He fell to the ground unconscious. He was taken to hospital where some time later he died.

5. The defendant was charged with causing Mr Cheng grievous bodily harm pursuant to section 17(a) of the Offences against the Person Ordinance.

6. It was the prosecution case that the applicant arranged for the men to beat up Mr Cheng. In the circumstances she was perhaps fortunate that the charge was not a more serious one.

7. Mr Poll who represented the applicant at the trial and before us submits that the sentence of five years' imprisonment which was imposed by Leong J was manifestly excessive.

8. In the perfected grounds of appeal he refers to the comparatively indirect involvement of the applicant and the fact that it would not normally be the case that the result of this type of assault would be so serious.

9. The answer to that must be that if a serious assault is perpetrated one should accept the consequences which flow from it even if they may be unexpected.

10. He referred to the evidence to the effect that the applicant did stay behind and tend to Mr Cheng after the assault was over.

11. The important point however was made by Mr Poll was that it was necessary to consider the intent. That is what was contemplated at the relevant time. In this context what seemed to be envisaged was a relatively minor assault.

12. The other mitigating factors were the applicant's clear record and the fact that she was looking after a 14 year old son who was a student. Taking cognizance of all of the surrounding circumstances we think that the sentence was on the high side. We think that a sentence of three years' imprisonment was the appropriate sentence. The application for leave is successful and dealing with the application as the substantive appeal we allow the appeal to the extent that the sentence of three years' imprisonment would be substituted for the sentence which was imposed.