HKSAR v. CHEN JINHUI

CACC 325/2017

[2018] HKCA 443

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 325 OF 2017

(ON APPEAL FROM DCCC NO 430 OF 2017)

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J U D G M E N T

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1.  The applicant pleaded guilty before HH Judge C P Pang (“the judge”) in the District Court on 27 June 2017 to four charges, namely (i) Burglary; contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210; (ii) Inflicting grievous bodily harm, contrary to section 19 of the Offences against the Person Ordinance, Cap 212 (“OAPO”); (iii) Wounding with intent, contrary to section 17(a) of OAPO; and (iv) Wounding, contrary to section 19 of OAPO, for which he was sentenced to a total of 4 years and 4 months’ imprisonment.

The Facts

2.  The applicant entered Hong Kong as a visitor on 13 March 2017 and was permitted to stay until 20 March.

3.  The burglary took place on 17 March 2017 in a department store at 395 King’s Road, North Point, Hong Kong which operated daily between 10:30 am and 9:30 pm. The entrances were secured after operating hours.  Three security guards, PW1 (aged 64), PW2 (aged 68) and PW3 (aged 68) were on duty in the department store that night.  They were the individual victims of Charges 2, 3 and 4 respectively.

4.  At 11 pm that day, the applicant was seen on the 1^st floor at a staircase in the department store; accordingly, he was challenged by PW1 who was at that time on patrol.  The applicant claimed that he had lost his way and PW1 offered to lead him out of store. (Charge1)

5.  PW1 led the applicant to the luggage section of the department store, where he met PW2.  He sought assistance from PW2 but, as he did so, the applicant swung a hammer at PW1’s right side.  PW1 managed to avoid the attack but was then pushed by the applicant and fell to the floor. (Charge 2)

6.  The applicant then rushed towards PW2 and struck his head twice with the hammer.  PW2 grasped the right hand of the applicant, as a result of which the applicant took out a screwdriver (of about 15 cm in length) with his left hand and stabbed PW2 with it “many times”.  PW2 managed to grab both of the applicant’s hands and both of them fell to the floor.  Once on the floor, the applicant continued striking PW2 with the hammer. (Charge 3)

7.  At this juncture, PW3 arrived to help subdue the applicant.  The applicant continued to struggle and hit PW3’s face with his screwdriver once during the struggle.  The applicant was eventually subdued and a report was made to the police. (Charge 4)

8.  The applicant was arrested by the police.  He stated under caution that he had come to Hong Kong and run out of money.  He had tried to look for a job at a construction site but failed; he therefore went to a metal store and purchased a hammer, a pair of pliers, a screwdriver, a pair of gloves and a torch, to see if there was anything for him to steal; he entered the department store at about 9 pm and hid himself inside with the intention of stealing after closing hours; he thought PW1 was going to arrest him, so he took out the hammer to resist, swung it around and hit someone.

Injuries

9.  All of the victims were injured.  In respect of PW1, there was tenderness over the lumbar spine and left patella.  There was bruising over both hands.  An X‑ray revealed a fracture and collapse of the 4^th lumbar spine.  He was fitted with a thoracolumbar orthosis (or brace) and received physiotherapy.  He was able to walk and was discharged from hospital on 20 March 2017.

10.  In respect of PW2, there were an abrasion to his upper chest and multiple lacerations to his forehead, face and nose, which were sutured.  X‑rays of PW2’s skull and nasal bone revealed no fractures, while a CT brain scan showed static results.  He was discharged from hospital on the same day.

11.  In respect of PW3, he was found to have a 2‑cm superficial linear laceration at his right face in the region of his cheek just below his right eye.  The wound was sutured and he was discharged from hospital on the same day.

Mitigation

12.  It was submitted on the applicant’s behalf that he was a married man residing in the Mainland, 46 years of age with a clear criminal record.  His wife was allegedly suffering from an immunity disorder, requiring constant medical care.  The applicant himself was suffering from an eye disease, as a result of which he had lost his job.  Since he was in debt, he intended to find a job in Hong Kong, apparently unaware that he needed a Hong Kong identity card for employment.

13.  Although the victims were in their mid- to late‑60s, it was said that their ages should not be considered an aggravating factor, since the applicant would not reasonably have known their ages given the lighting conditions inside the department store.  The applicant also claimed to have received injuries and was bleeding at the time of arrest; he said that one of his fingers was fractured, and that he heard echoes as a result of brain concussion.  Nevertheless, it was accepted by the applicant’s solicitor that there was no medical report to support these claims.

14.  It was also submitted that he had not entered the department store intending to assault anyone but had reacted in panic.

Reasons for sentence

15.  The judge was satisfied that when he used the hammer and the screwdriver to strike at the victims, the applicant would have known very well that it might cause serious injuries to them.  The judge said the applicant’s intention was clearly to resist the security guards on duty, whom he thought were going to arrest him.  He considered this to be an aggravating factor.

16.  He commented that the hammer and the screwdriver (which I have examined in court) could be lethal weapons, and that serious injuries had been caused to security guards going about their lawful business; in particular, PW2 had been struck on the head at least twice with a hammer and stabbed many times with a screwdriver.  It was sheer chance that he did not sustain more serious injuries.

17.  The applicant was not a Hong Kong resident and was here as a visitor.  The sentences imposed needed to have a deterrent effect, both generally and individually.

18.  The judge adopted a starting point of 2½ years’ imprisonment in respect of Charge 1 (burglary).  For Charge 2 (section 19 of OAPO), the judge considered the following factors: (i) the intention behind the attack; (ii) the use of the hammer; (iii) the potential risk of injury, which the hammer might have caused; and (iv) the actual injury caused to PW1.  In respect of the last factor, the judge noted that PW1 was still receiving physiotherapy for his lower back pain.  For this offence, the judge adopted a starting point of 2½ years’ imprisonment.

19.  In relation to Charge 3 (section 17(a) of OAPO), the judge referred to HKSAR v Chan Chun Tat[1] and considered, in particular, the nature of the weapons used, the motive behind the attack, the way PW2 was assaulted and the actual injuries caused to him.  Accordingly, he adopted a starting point of 4½ years’ imprisonment.

20.  As to Charge 4, the judge considered that, although the 2‑cm laceration to PW3’s face was “not a very serious one”, the screwdriver could have caused very serious injuries to PW3’s eyes.  The judge adopted a starting point of 18 months’ imprisonment.

21.  The judge said that the overall starting point for all four offences should be 6½ years’ imprisonment.  Other than the applicant’s pleas of guilty, there were no other mitigating factors.  Financial difficulty and family circumstances did not amount to mitigation.

22.  After reducing the sentences by one‑third for the guilty pleas, the judge ordered that 8 months of the sentence on Charge 2 should run consecutively to the sentence on Charge 3; while the sentence on Charge 4 should run wholly concurrently with the sentences on Charges 2 and 3.

23.  Further, 8 months of the sentence on Charge 1 was ordered to run consecutively to the total sentences on Charges 2, 3 and 4, making a total of 4 years and 4 months’ imprisonment.

Grounds of appeal and submissions in support

24.  M Wong Po Wing, on behalf of the applicant, submitted that the individual starting points for Charges 2, 3 and 4 were manifestly excessive, as was the overall starting point.  He complained that the judge failed to give sufficient consideration to the fact that the offences in Charges 2, 3 and 4 were not premeditated, but committed out of panic in the course of trying to effect an escape; the hammer and the screwdriver having been carried for the purpose of burglary, not assault.  He suggested that the level of force and/or aggression was low and the injuries “not particularly serious”.  Finally, all four offences had arisen out of the same course of conduct.

Respondent’s submissions

25.  Mr Antony Leung, on behalf of the respondent, argued that Charges 2, 3 and 4 had the following features: (i) the applicant, who was at the time aged 46, attacked the victims who were significantly older than him, who were unarmed, and who were only carrying out their duties in a responsible way; (ii) the applicant had used potentially lethal weapons to attack the victims unnecessarily and without provocation, including attacking the face and head of PW2 and PW3; (iii) the applicant attacked PW1, PW2 and PW3 separately, one after the other.  He submitted that the sentence must have both a personal and general deterrent effect, for which partly consecutive sentences were justified.

26.  Mr Leung accepted that the starting point for Charge 2 was on the high side, but argued that the starting point for Charge 3 was on the low side; in any event, the judge had rightly ordered only 8 months of the sentence on Charge 2 to run consecutively to that of Charge 3.  He submitted that the judge was entitled to adopt a starting point of 18 months in respect of Charge 4 but was generous in ordering that sentence to run wholly concurrently with the sentences on Charges 2 and 3.  These were three separate assaults on three different victims on after the other, for which a consecutive element would have been appropriate in respect of each charge.  Nevertheless, he submitted that the overall sentence in respect of Charges 2, 3 and 4 was not manifestly excessive.

27.  As to Charge 1, it was submitted that the burglary was completely different in nature, and the judge was entitled to order part of the sentence to run consecutively to the sentences on Charges 2, 3 and 4.  Mr Leung referred to HKSAR v Ngai Yiu Choi[2], in which the Court had approved the judge’s order that the sentences for domestic burglary and assault occasioning actual bodily harm in the course of trying to escape the lawful apprehension of a security guard should run wholly consecutively.

Consideration

28.  This was a case in which the judge was clearly right to identify the need for both general and individual deterrence.  In terms of general deterrence, the applicant was a visitor who had come to Hong Kong from the Mainland four days before the offences took place.  Although it remains highly suspicious as to why he came in the first place, given that time frame and the circumstances of the burglary offence, there has been no finding by the judge or admission by the applicant that he came to Hong Kong to commit crime.  However, if the applicant was in as difficult a financial predicament as he claims, one wonders where he found the money to buy a hammer, a pair of pliers, a screw driver, a pair of gloves and a torch in order to commit the burglary.

29.  Whatever the real position, visitors to Hong Kong should be firmly discouraged from turning to serious crime when they come here, whether they run out of money or not.

30.  The other aspect of deterrence, which is perhaps more important, is that defendants should be firmly deterred from resorting to weapons and violence when they are discovered or apprehended; particularly during a burglary at night, which is especially alarming because of its furtive and unexpected nature which sometimes causes people to react in unpredictable ways.  PW1, PW2 and PW3 were going about their lawful business keeping the department store in question secure.  They were unarmed and should not have had to contend with the onslaught of violence they received.  I doubt very much any Court would agree that this was one continuous course of conduct for which concurrent sentences were appropriate.  Indeed, a Court might well think that a far greater part of the sentence for the burglary offence should have been ordered to run consecutively to the sentences on Charges 2, 3 and 4.

31.  In terms of individual deterrence, the injuries may fortuitously not have been life-threatening.  However, if a defendant repeatedly stabs a 68‑year old security guard, who is more than 20 years his age, with a screwdriver and wields a hammer at his head, he runs the obvious risk of causing very serious injury to both life and limb.  The photographs of PW2 reveal lacerations to his face less than an inch away from each of his eyes.  This was a sustained and continuous course of violent aggression on one security guard after another in order to effect an escape, for which there must be a strong deterrent component in sentencing.

32.  I do not see any reasonable grounds for appeal in relation to the overall sentence of 44 months’ imprisonment after plea for Charges 2, 3 and 4.

33.  In respect of Charge 1, no complaint is made about the starting point of 2½ years’ imprisonment; and for good reason.  It may have been a non-domestic burglary, but such a label hardly does justice to the planning and preparation that went into it.  Quite apart from the purchase of the tools to which I earlier referred, the applicant had obviously hidden himself inside the store for at least an hour and a half until he thought it was safe to emerge.  I agree with Mr Leung that the applicant could not have complained if a greater component of Charge 1 in the circumstances had been ordered to run consecutively to the sentences on Charges 2, 3 and 4.  Even if the overall sentences on Charges 2, 3 and 4 could be said to be on the high side, they were offset by the judge making only 8 months of the sentence for Charge 1 consecutive to them.

34.  Ultimately, however the judge went about the exercise of sentencing, the Court will have to ask itself whether the overall starting point of 66 months’ (or 5 years 6 months’) imprisonment, and the resulting sentence after plea of 44 months’ (or 3 years and 8 months’) imprisonment, for this course of criminal conduct, was manifestly excessive and/or wrong in principle.  The sentence may be robust, but I do not see any reasonable grounds for saying that it is manifestly excessive, particularly when one factors into the sentence the important deterrent elements, to which I have referred and which the judge rightly bore in mind.

35.  The application is refused.  The applicant is advised that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of the application.