HKSAR v. TRAN VAN CANH

DCCC 503/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 503 OF 2014

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Reasons for Sentence

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1. The defendant has been convicted of an offence, contrary to section 19 of the Offences Against the Person Ordinance, Cap 212. This followed a trial but as pointed out in my reasons for verdict, the defendant through his counsel indicated before trial commenced he was willing to plead guilty to a section 19 offence. This plea was not accepted by the prosecution. During the trial which followed, the defence sought to challenge an important aspect of the prosecution case, namely, whether a knife had been used. Much of the time was devoted to this issue. A question therefore arises whether the defendant is entitled to a full one-third discount to reflect the plea as indicated.

2. The defendant has also been convicted of the 2nd charge of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200.  There was no admission to this offence, and the facts which supported the allegation were challenged at trial. 

3. I do not propose to recite the facts behind these offences, having extensively reviewed them in the reasons for verdict.

4. This was a nasty attack on PW1, resulting in lacerations and extensive bruising as reflected in the medical report, the evidence and the photographs.  Whilst the bruising does not constitute a wound for the purpose of section 19, the attack by the defendant with a knife coupled with the beating using Exhibit P5 understandably caused PW1 much fear and pain.

5. Defendant has by his conduct shown himself to be an unpleasant character who is prepared to resort to violence, express anger and what appears to be jealousy.  There was no excuse for what he did. 

6. Defendant has 27 previous convictions.  In 1996, he was convicted for assaulting a police officer in the execution of his duty; in 2002, he was convicted of robbery; in 2012, for assault occasioning actual bodily harm.  He therefore has a history of violence.  He also has a number of convictions for dishonesty. 

7. The maximum term for an offence under section 19 is 3 years’ imprisonment. 

8. In mitigation, I have been told the defendant is 48, single with no children. 

9. The defendant has been in Hong Kong since 1988, having arrived from Vietnam as a refugee.  Prior to his arrest, he was working, earning $10,000 per month.  He has elderly parents and siblings in Vietnam.

10. I have been referred to the case of the Attorney General v Lee Kui Man, Application for Review No. 3 of 1997 where a sentence of 12 months was substituted for an original sentence of 3 months in respect of an offence under section 19.  The defendant in that case was also sentenced to 2 months’ imprisonment for offences of indecent assault although the indecent assault in that case occurred on the MTR.

(Discussion re length of imprisonment in legal case)

11. In Mr Leung’s closing submission, he also referred me to the appeal case HKSAR v Chan Ka Wah CACC 74 of 2011.  In that case, a sentence of 27 months’ imprisonment for a section 19 offence was upheld on appeal.   

12. Mr Leung refers to the defendant’s indicated plea to the section 19 offence and seeks concurrent sentences on behalf of the defendant. 

13. Taking into account at the circumstances of this case, I will adopt a starting point of 2 years’ imprisonment.  As stated above, the defendant did through his counsel indicate an intention to plead to an offence under section 19 but nevertheless went on to contest a major feature of the prosecution case.  In the event, the court was satisfied he had used the knife but was not satisfied as to the requisite intent for a conviction under section 17.

14. Furthermore, the court was of the view the resulting wounds were not serious enough to warrant a conviction under section 17. 

15. If the matter had proceeded by way of a plea under section 19 and the defendant maintained his opposition to the allegation he used the knife, this may have resulted in a Newton hearing.  When a Newton hearing is held and the court finds against a defendant on the facts, the defendant is generally entitled only to a reduced discount to reflect his plea.

16. However, in the present case, the defendant was not given the opportunity to enter a plea to a section 19 offence and consider whether to admit a Summary of Facts in relation to that charge.  In the circumstances, I cannot automatically assume he would have continued his opposition to the allegation a knife had been used.

17. I note from Mr Leung’s closing submission he says if the court is satisfied the defendant used a knife, he should only be convicted of a section 19 offence given the extent of the injuries sustained by PW1.  From that submission, it would appear and I accept the challenge to the use of the knife in the trial which followed was aimed primarily at the section 17 offence.  Moreover, since the defendant denied the 2nd charge, a trial was inevitable although it may have proved shorter had the issue turned solely on the allegation of indecent assault.

18. In all the circumstances, I will allow the defendant a full one-third discount.  There are no other mitigating factors which would reduce that term, and the defendant is sentenced to 16 months’ imprisonment on the 1st charge.

19. In respect of the 2nd charge, this was a conviction after trial.  It was not the most serious offence of its kind but I have no doubt had PW1 not been able to kick the defendant away, he would have gone on to commit further indecent and degrading acts.

20. The commission of an indecent assault on public transport or in a public place is regarded as an aggravating factor.  In this particular case, the indecent assault took place within a private premises.  Unpleasant though no doubt it was, as I have commented, it was not the most serious of its kind.   

21. In all the circumstances, the defendant is sentenced to 21 days’ imprisonment on the 2nd charge.  Since the indecent assault was part of a continuing incident on 14 April, the sentence in respect of the 2nd charge will run concurrent to the term imposed in respect of the 1st charge.  The defendant will therefore serve a total term of 16 months’ imprisonment.