HKSAR v. RANA WASIF SALEEM

CACC 15/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 15 OF 2014

(ON APPEAL FROM DCCC NO. 244 OF 2013)

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Hon Lunn VP (giving the judgment of the court):

1.  The applicant, a torture claimant, to whom the judge referred to as D4, seeks leave to appeal against the sentence of 15 months’ imprisonment imposed on him on 8 January 2014 by District Court Judge Dufton, following his plea of guilty to a charge of criminal damage on 26 November 2013, contrary to section 60(1) of the Crimes Ordinance, Cap. 200. The judge made references to the other defendants at trial by their numerical designation as defendants at trial.

Facts

2.  The nub of the judge’s summary in his reasons for sentence of the events that constituted the offence of which the applicant was convicted is to the following effect.  On 26 November 2012, at about 10:45 a.m., Madam Sung was delivering meal boxes to a construction site in Tai Po when D3 and the applicant, each holding a crowbar, smashed the windscreen and side mirrors of her Light Goods Vehicle.  D2 was standing near the light goods vehicle acting as a lookout, whilst D1 was the getaway driver of their vehicle.

3.  When Sung looked to the front of her vehicle and saw one of the defendants smashing the window, she shouted out, asking why they hit her vehicle.  D3 and the applicant continued to smash the windscreen of the vehicle and then ran towards their own vehicle, in which they made good their initial escape.  During her chase of them one of them, either D3 or the applicant, pointed at her and said :

“ This time your car is hit, next time it is not as simple as hitting your car. Be careful.”

4.  Madam Sung reported the details of the vehicle number plates to the police by telephone.  A little later, Police officers intercepted the applicant and his three co-defendants as their vehicle was driven away at speeds above the speed limit.

Reasons for sentence

5.  In sentencing the applicant, the judge noted that Madam Sung testified of a ‘background’ to the offence, arising from the fact that she had refused to pay protection money.  However, the judge said that there was no evidence that the applicant or his co-accused were involved in the matter.

6.  The judge said that the acts which constituted the offence of criminal damage were very serious, adding that the enterprise was clearly planned with the intention of disturbing Madam Sung in the conduct of her lawful business, so that a deterrent sentence was required.  Given that it was a joint enterprise, the judge said that he drew no distinction between the applicant and his co-accused, notwithstanding the different roles in the commission of the offence.

7.  The judge said that he did not find helpful either of the two cases to which he had been referred by counsel for the applicant.

Starting point

8.  Having noted that the circumstances of the commission of the offence included the fact that there were four persons involved in a planned action, in which extensive damage was done, the judge stipulated a starting point for sentence of 2 years and 6 months’ imprisonment.

Discount

9.  In light of the fact that the applicant had pleaded guilty to the offence and had given evidence for the prosecution at the trial of his co-accused, and having referred to the judgment of the Court of Final Appeal in HKSAR v Z [1], the judge afforded the applicant a discount of 50% from the starting point.  In the result, he imposed a sentence of 15 months’ imprisonment on the applicant.

10.  Having regard to the fact that the applicant was then serving a sentence of 20 months’ imprisonment, imposed on him on 9 July 2013,[2] the judge ordered that the sentences for the burglary and for the criminal damage were to be served wholly consecutively.  In doing so, he noted that the applicant had been caught red-handed committing the burglary, notwithstanding which he had been granted bail.  Whilst on bail he had committed the offence of criminal damage.  That was an aggravating feature in the commission of the current offence.

Grounds of appeal against sentence

11.  The applicant filed with the court a notice of application for leave to appeal against sentence dated 22 January 2014 by way of Form XI of the Criminal Appeals Rules, Cap. 221.  In a statement attached to the Form XI, the applicant prepared two homemade grounds of appeal.  First, he said the judge was wrong to impose a sentence of 2 years and 6 months’ imprisonment on him, which was the same sentence as that imposed on D1 and D2.  They did not plead guilty to the offence and played a major role in the offence, in that D1 was the mastermind and D2 was his right hand. Secondly, he complained that 4 months of the time that he had served in prison was not counted towards his term of imprisonment. 

12.  In a letter he wrote to the court dated 19 May 2014, D4 sought to rely on HKSAR v Chan Wing-keung DCCC 782, 858, 875, 878 & 995 of 2013 to support his application for reduction of sentence.

A CONSIDERATION OF THE SUBMISSIONS

13.  As the respondent pointed out the present case was quite different from Chan Wing-keung.  There, the criminal damage was caused by the splashing of paint, whereas the present case involved significant physical violence by the use of crowbars in that a light goods vehicle was damaged by D4 using crowbars.  His role was not minor.

Conclusion

14.  As is apparent, the judge did not impose a sentence of 2 years and 6 months’ imprisonment on the applicant.  Given that the current offence had been committed whilst the applicant was on bail for an offence of burglary, for which he was sentenced subsequently to 20 months’ imprisonment, the judge was entitled to regard that as an aggravating factor in the commission of the current offence and, given the entirely different nature of the two offences, to order that the sentence of imprisonment imposed in respect of criminal damage be served consecutively to that imposed in respect of the burglary.

15.  There is no merit in the application for leave to appeal against sentence, which is dismissed.

[1] HKSAR v Z [2007] 1 HKLRD 977.

[2] HKSAR v. Rana Wasif Saleem and another (DCCC 366/2013).