HKSAR v. MA MAN HO

CACC 252/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 252 OF 1999

(ON APPEAL FROM HCCC 3 OF 1999)

-------------------

----------------------

J U D G M E N T

-----------------------

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

1. The applicant pleaded guilty before Deputy Judge Gill in the High Court to one charge of wounding with intent, contrary to s.17 of the Offences Against the Person Ordinance. He was sentenced to four years' imprisonment. He now applies for leave to appeal against that sentence.

2. The facts, relied upon by the prosecution and admitted by the applicant before the judge, were these. In the morning of 20 October 1998, a 46 year old woman was descending on an escalator in the Shun Tak Centre. She had just arrived from Macau and was carrying a bag containing a large amount of foreign currencies. She brought the money for deposit into the Po Sang Bank on behalf of her cousin. Suddenly, a man standing behind her hit her hard on the head with a metal water pipe continuously while three other men, who were similarly armed with water pipes of the same kind and size, snatched the bag from her. She struggled but was overcome. She was bleeding and eventually lost consciousness.

3. The attack was witnessed by security guards and an off-duty police officer. One of the guards ran forward to apprehend the man wielding the pipe, who was in fact the applicant. He was still carrying the metal water pipe at the time he struck at the guard, who partially warded off the blow, but nevertheless sustained some injuries.

4. The applicant was eventually caught with the water pipe beside him while the three other men made good their escape.

5. The victim was treated for the injuries to her head. She suffered a fracture to her skull. There were other injuries. She was observed to be stable and was discharged from hospital after 24 hours. The security guard was treated for bruising.

6. The sole ground of appeal is that the starting point of six years is manifestly excessive. Mr Osmond Lam, who appears for the applicant, readily concedes that the attack was a vicious and deplorable one, and the kind of offence that should be deterred. But he says that the applicant has pleaded guilty and shown remorse. He submits that the starting point should be between four to five years instead of six years.

7. He refers us to three previous decisions of this Court in R. v. Fok Tin-yau [1995] 1 HKCLR 351; A-G v. Low Wing Wah [1996] 1 HKC 345 and R. v. Nguyen Quang Thong & Others [1992] 2 HKCLR 10.

8. We have considered these decisions; suffice it to say that we do not find them to be of particular assistance. Circumstances vary from case to case and there are very few cases where the facts are identical. Each case must be decided on its own facts.

9. The judge approached sentencing in this way. He said at page 7J-T and page 8A-B of the transcript :

"My first task is to consider the appropriate starting point to adopt; that is, the sentence that would be imposed after trial without any mitigation.

There is no guideline sentence to assist me for wounding with intent, for the range of circumstances giving rise to the commission of such an offence is simply too vast.

But whilst in this case the defendant is not before me for sentence for armed robbery, nevertheless, he took part in what, on any view, was a concerted and serious attack. It was premeditated; he knew that his role was to use his waterpipe on a victim to be identified. He, like the others, smeared glue on his hands beforehand as a means of hiding his identity. The victim was a single female, unarmed and trapped on the confines of a moving escalator. She did nothing to provoke the attack. There were four assailants, all armed similarly. She had no realistic means of defending herself. The defendant struck her indiscriminately heavy blows about the head. She was knocked to the ground, unconscious and bleeding. The weapon he used and the manner in which he wielded it and the vulnerable part of his victim's body he targeted were factors all capable of causing permanent disability or worse. Certainly there was scant regard for his victim's welfare. That she appeared to have recovered speedily is a matter of extreme good fortune. But it must have been a horrifying experience for her.

I regard this as a serious example of a serious crime, and adopt a starting point of six years' imprisonment."

10. We agree. As the judge quite rightly observed, this was a concerted, unprovoked, serious and cowardly attack on a woman who was completely unarmed and was not in a position to defend herself. It is sheer good fortune that the victim had not suffered more serious injuries and she had recovered so rapidly. Wounding with intent is a most serious crime which carries a maximum sentence of life imprisonment.

11. In our view, a sentence of four years' imprisonment after a plea of guilty is a proper sentence, and the starting point of six years adopted by the judge is appropriate in the circumstances of this case. The judge has already taken into account of the plea of guilty and allowed him one-third discount which the plea entails.

12. The sentence imposed on the applicant is neither manifestly excessive or wrong in principle, and it does not cause us concern.

13. The application for leave is refused.