HKSAR v. ESPIRITU RENATO V.

CACC 12/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 12 OF 2002

(ON APPEAL FROM DCCC NO. 754 OF 2001)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1 This is an application for leave to appeal out of time against conviction, and an application for leave to appeal against sentence.

CONVICTION

The charge

2 On 14 December 2001, the applicant pleaded guilty before HH Judge Line in the District Court to a charge of causing grievous bodily harm with intent to do so, contrary to section 17(a) of the Offences against the Persons Ordinance, Cap 212. He was sentenced on that day to a term of three years' imprisonment.

The facts

3 The offence took place on 30 June 2001 outside the Cinta Restaurant in Jaffe Road, Wanchai. The applicant had been at that restaurant with some friends, and one of the members of the group was a Mr Salas, the complainant or victim in this case.

4 The facts which the applicant agreed and which, for reasons that will become apparent, should be related in some detail, ran in their material parts as follows:

"At about 0030 hours on 30 June 2001, the group finished the drinks and was leaving the restaurant. [Salas] was standing outside the restaurant and waiting for a taxi when the defendant went to speak to him. Following some exchange of words, the defendant started to attack [Salas] with his fists and kicks. The attack was then stopped by PW3 [one of the friends with whom the applicant had been at the restaurant] and some unknown persons. The defendant managed to return and hit [Salas] again. Each time the defendant was separated from [Salas], he went back to attack him. During the attacks, [Salas] was lying on the pavement. When [Salas] managed to stand up and walked to the roadside to try to hail a taxi, the defendant once again returned and punched him. The punch caused [Salas] to fall down and hit his head against the ground. [Salas] became unconscious.

At the material time, [two police officers] were on duty nearby. They arrived at No. 90 Jaffe Road at about 0034 hours on the same day when they saw the defendant. When they tried to stop the defendant who was walking away, the defendant was unco-operative and a struggle ensued. The two constables then handcuffed the defendant and took him to the scene where [Salas] was still lying unconsciously on the pavement. When they were about three metres from [Salas], the defendant suddenly broke away from the two constables, rushed forward to [Salas] and kicked him hard on his head. The two constables immediately pushed the defendant away but the defendant still tried to run towards [Salas]. They pressed the defendant on the ground. The defendant resisted further but the constables managed to subdue him. [One of the constables] ... arrested ...the defendant.

[Salas] was later sent to Tang Shiu Kin Hospital and then Queen Mary Hospital where he received ... treatment. He stayed in the hospital for 12 days as a result of the following injuries that he sustained:

(a) a haematoma measuring 2.5 cm in diameter over the left forehead;

(b) a laceration of 1 cm length at the right upper eyelid;

(c) bruises over the right face, right forehead and the nose;

(d) a transverse fracture line of about 7 cm on the skull; and

(e) gastrointestinal bleeding.

The defendant was interviewed under caution later [that] day [and] [Salas] said that he did not know the reason for the attack."

These facts were read to the applicant, and he agreed them.

Mitigation

5 Mr Boase, an experienced solicitor, who appeared for the applicant in the court below, mitigated at some length; and we have a transcript of that mitigation. He emphasized the fact that the applicant was then aged 39 years, and a man of previous good character; and that he had that day obtained a licence to open a business and was celebrating. The applicant, apparently, did not know Mr Salas, but words had been exchanged between them, and the applicant attacked him without any weapon and without premeditation. The mitigation went on that the applicant had been very shocked when he learned that Salas was in a coma. Mr Boase suggested that the judge should call for a community service order report, but the judge made it clear that in his view that, in the circumstances of this particular case, was out of the question, and he reminded Mr Boase that the plea tendered by the applicant itself acknowledged that the applicant had intended to cause grievous bodily harm.

Judge's remarks

6 In sentencing the applicant, the judge summarised the facts in a way which accurately highlighted the repeated assaults on the complainant, and the fact that whilst Salas was lying on the ground unconscious, the applicant broke from the custody of the police and delivered a hard kick to the head of the unconscious man. The judge then said this:

"When I first read those facts, I had in mind a sentence after trial, what we call a starting point here, of something like 6 years. I have listened to the mitigation and I have tried to put this in perspective for man like you. But given the violence that you used, how you pushed it home and repeated it, and then breaking custody to kick with a shod foot at a man's head, means I cannot pass a sentence on a plea of guilty of less than 3 years' imprisonment.

In the end, I took a starting point of 4 1/2 years and that is one I lowered in my mind from what I first contemplated. I can tell you this: that you have had a full one-third discount for your plea of guilty. I have given you credit in taking that starting point for your good character. It is a good character at 39 years of age and you have lived, I accept, an honest and decent life thus far. I remember that this was not a planned attack in the sense that you were looking to do this man violence. But that has to be balanced by the fact that it was pushed home despite the intervention of people and the police to try and stop you doing what you were doing.

I accept there was no weapon used. But that again has to be put into context. Kicking a man with a shod foot hard in the head when he lies unconscious in fact is almost to use a weapon. In those circumstances, I cannot, consistent with my public duty, pass a sentence of less than 3 years. That is the sentence I pass."

The alleged inconsistent plea

7 As to the conviction, it is contended that the facts admitted did not disclose the offence with which the applicant was charged or to which he had pleaded guilty, and that, accordingly, the plea ought not to have been accepted. The matter is put in this way, that the admitted facts did not disclose the necessary intent at the time that the grievous bodily harm was caused. On its face, that may be said to be a strange submission because by his plea, the applicant admitted that intent. That really should suffice to dispose of the appeal against conviction, but we will address the matter further because, on any view of the case, the argument is, in our judgment, untenable.

8 There were, it is said, two separate assaults: the assault when the applicant fell and struck his head on the ground, and the later assault when the applicant broke away from the police and kicked Salas in the head when he was down and out. The grievous bodily harm is said by counsel for the applicant to be the fracture to the skull and the resulting unconsciousness, whereas the intent to cause grievous bodily harm was evidenced by the deliberate kick to the head which only came later. At that latter stage, so the argument goes, the grievous bodily harm had already been caused, and there is therefore no connection between the intent to cause grievous bodily harm and the harm caused.

9 It is unnecessary for us to deal with those authorities which have been cited to us by the respondent in which courts have considered the causal link between an initial assault, not causing death, and a later event unaccompanied by a specific intent, but which is the direct and final cause of death. That is because it is sufficient to say that the submission in this case is unrealistic, and is also based upon an unwarranted premise. The argument depends in the circumstances of this case upon too fine a dissection of what happened; of the applicant's conduct; and of what caused the multiple and serious injuries with which the victim was admitted to hospital. This was, in our judgment, one course of conduct and, in the course of that conduct, the applicant, who saw a man felled to the ground and unconscious, kicked him in the head, no doubt thereby aggravating whatever serious injury had by then been occasioned by the applicant himself to the victim's head; and aggravating it quite deliberately. It defies commonsense and logic to suggest that the offence is not self-evidently made out.

10 But even if one were to accept the applicant's invitation now to engage upon a dissection of these events, which spanned such a short duration, and upon a dissection of the injuries caused at individual moments, and a dissection of the applicant's state of mind at specific points in time, it is an exercise which does not avail the applicant. The initial assaults which the applicant repeatedly rained upon the victim were assaults with kicks and punches, and were delivered whilst the applicant was lying on the pavement - all of this before the final kick to the head after the police arrived. One of the injuries sustained by Mr Salas was gastro-intestinal bleeding. It can hardly be suggested that this constitutes anything other than really serious harm. Mr Burkett, in his concise submissions today, concedes as much. One must then ask: Who and what occasioned that really serious harm? Mr Burkett himself provides the answer in his written submissions in relation to sentence where he says:

"The gastrointestinal bleeding must have been caused during the repeated punching and kicking prior to the victim being knocked to the ground which resulted in the fracture to the skull when he hit his head against the ground, by which in context he means prior to the final knock to the ground, for the facts make clear that prior to that final knock to the ground Salas had already been reduced to lying on the pavement and that whilst he was lying there the applicant was attacking him."

That is the correct picture against which it is, in our judgment, untenable to suggest, even on a minute analysis, that the plea was inconsistent with the admitted facts.

11 Accordingly, the application for leave to appeal out of time against conviction is dismissed.

SENTENCE

12 The application in relation to sentence is grounded upon two complaints. The first is that the judge allegedly took the view that the attack was as serious as if a weapon had been used. What the judge said was that whilst he accepted that a weapon had not been used, nonetheless, using a shod foot to kick a man hard in the head when he lies unconscious "is almost to use a weapon". What the judge was saying was that mitigation should be realistic and contextual, and the fact, in this case, that no weapon was used was not a fact which availed the applicant greatly, given what he in fact did. The judge was quite right. Whether the use of a weapon would have significantly increased the applicant's culpability would depend upon the weapon, and the use which he made of it. In this case, the applicant used his shoe, and he used it hard against the head of an unconscious man; and that was the serious factual basis upon which the judge had to determine sentence, and upon which we have to ask ourselves whether the sentence was manifestly excessive.

13 The second complaint is that the judge did not give consideration to the fact, as it is contended, that the kick did not cause the grievous bodily harm in respect of which the applicant was sentenced. We have dealt with that complaint when addressing the question of conviction, and it does not merit further discussion.

14 Whilst the applicant was a man of previous good character, and whilst it is common ground that the attack was one out of character, it was, as the facts which we have recited disclose, a relentless attack and a vicious one, which the judge correctly described as shocking. The sentence, in the circumstances, was justified; and, accordingly, the application for leave to appeal against sentence is also dismissed.