THE QUEEN v. LY XUONG THANH

IN THE COURT OF APPEAL

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JUDGMENT

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Li, V.-P.:

1. This is an application for review of sentence. The respondent pleaded guilty to assault occasioning actual bodily harm in February this year.

2. The admitted facts were that on 8th February this year in the evening or late afternoon along Nathan Road the victim Mr. Lanham was walking behind some tourists. Three persons were seen by Mr. Lanham acting in a furtive manner. He saw one of them put the hand in a pocket of a lady in front of him and took the wallet. Mr. Lanham grabbed the thief and shouted police.

3. Another one of the three, the respondent, went over and hit Mr. Lanham on the nose, causing him abrasions over the nose and a broken tooth. In the meanwhile the thief dropped the wallet and made good his escape.

4. The respondent then tried to run away. He was chased and caught by a police officer in the street. Such facts were admitted.

5. There was overwhelming evidence that he did commit the offence. It does not really require strong imagination to infer that this respondent was in fact acting in concert with the thief in order to facilitate the thief's escape when caught.

6. The learned Magistrate who accepted his plea of guilty had these facts before him. However, he said in his Statements of Facts and Reasons for Sentence that there was no evidence that the defendant was acting in concert with the thief. He further said that the Crown must have accepted this having regard to the fact that the defendant was not charged with theft. With due respect we feel that his finding and his inference is wrong. Be that as it may imposed a fine $1,000 and awarded compensation of $5,000 to Mr. Lanham. He made an order that if the fine and compensation were not paid the respondent would have to go to prison for 4 months. The fine and the compensation were paid in fact within 7 days.

7. The Attorney General's basis for applying for a review was that such a sentence was manifestly inadequate and wrong in principle.

8. The fact that the respondent could not claim previous good, character. He came to Hong Kong as a refugee from Vietnam in 1979. Starting from 1981 down to 1984 he had no less than 4 or 6 previous convictions. Four of them involved theft and two attempted theft, not to mention a few other ancillary offences. He had been to prison. He did not seem to have learned his lesson.

9. On the other hand Mr. Allman-Brown contended persuasively for the respondent to the effect there had been a long delay. The police did not seem to think too seriously of this matter. They brought the case before the Magistrate. They did not apply for review or suggest there should be a review. The long delay before this application was heard suggested a suspended sentence would meet the day. This is particularly so in view of the very heavy compensation ordered to be paid and the fine.

10. We have considered this application with some anxiety. We agree with Counsel for the Attorney General that the sentence is indeed wrong in principle. No doubt the attack was to facilitate the escape of the thief. He had previous convictions.  If convicted after trial he should be awarded a sentence of at least 6 months immediate custodial sentence.

11. In the circumstances of strong evidence not too much of a discount could be accorded to him. The compensation of $5,000 appears high. Taking into consideration of pain and suffering as well as the cost nowadays of dental fees we do not think it is too excessive. The offence is a serious one. However we have to give consideration to the long delay which is unfortunate.

12. In this connection it is a matter of regret that this case first came before this court last May, this court granted an adjournment to enable the respondent to obtain or be granted legal aid last May. It was delayed and it was not set down for hearing until today. That is an inordinate delay which we also take into consideration.

13. We consider the high compensation that had already been ordered to be paid and was in fact paid; the long delay in the hearing of this review. We bear in mind that this is a review in which a discount is normally given. In the circumstances a discount would have to be given to what we have in mind as to the proper sentence. We come to the conclusion that there is merit in this application. The application is allowed and the sentence will be reviewed. It is reviewed to the extent that the respondent will receive an immediate custodial sentence of 3 months imprisonment. The fine of $1,000 will be remitted to him.