HKSAR v. AU CHUN FOO

CACC 125/2023 [2024] HKCA 169

On appeal from [2023] HKDC 866

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 125 OF 2023

(ON APPEAL FROM DCCC NO 404 OF 2018)

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J U D G M E N T

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1.  On 20 June 2023, the applicant was convicted on his own plea before District Court Judge Tam (the Judge) of one charge of wounding (Charge 1)[1] and one charge of failing to surrender to custody without reasonable cause (Charge 2)[2]. He was sentenced to 28 months’ imprisonment.

2.  The applicant now applies for leave to appeal against his sentence. He appears in person, having had legal aid refused.

The agreed facts

3.  The facts outlined to the judge and admitted by the applicant acknowledged that he committed the offence of wounding and absconded during the course of the court proceedings for the offence.[3] The facts agreed were as follows.

4.  At about 12:15 am on 11 March 2017, Wong Kam Hung (PW1) and two friends were drinking outside a 7-Eleven Convenience Store (the store) in Kai Tin Estate. At about 2:40 am, the applicant tried to converse with a female staff member of the store, Li Meixiang (Li), who was unwilling. PW1 intervened, and a row ensued with the applicant, who then left. PW1 continued to drink with his friends. The altercation between PW1 and the applicant was captured on CCTV installed inside the store.

5.  About 15 minutes later, the applicant returned with two men. Each carried a metal bar about 2 feet long and ran towards PW1. The applicant struck PW1 on the head with a metal bar, and the other two men followed suit. PW1 tried to block the assault with his bare hands but eventually fell onto the ground and was unable to get back up. The assault continued for a while, and then the three men fled from the scene.

6.  PW1 was admitted to the hospital and suffered from the following injuries: (1) swelling and bruising on his right cheek and periorbital region; (2) a laceration on his right upper eyelid; (3) a 4 cm laceration over his scalp; (4) a right maxillary fracture; and (5) a right eye subconjunctival haemorrhage. PW1 was discharged from the hospital, prescribed medication, and given sick leave for 7 days. He was referred to maxillofacial and ophthalmology clinics for follow-up treatments.

7.  On 14 March 2017, the applicant was arrested for wounding with intent, and on 3 July 2017, he was positively identified by PW1 in an identification parade.

8.  The applicant was charged with wounding and granted bail. On 19 July 2018, the applicant did not attend a mention hearing of his case and a warrant of arrest was issued against him.

9.  On 25 June 2022, the applicant arrived at Hong Kong International Airport from Cambodia. He was refused entry because he had not booked a designated hotel for quarantine. He caused a disturbance, and the police were called, who arrested him on the outstanding warrant.

The applicant’s mitigation[4]

10.  The applicant was 26 years of age at the time of sentence but was 20 years of age when he committed the wounding offence. Before he absconded, he lived with his parents and family and worked as a salesperson and a transportation worker. He returned to Hong Kong because his elderly father had suffered a stroke, and he wanted to spend time with him. The applicant had two prior convictions for possession of a dangerous drug in 2011 and 2017 and was placed on probation in respect of each conviction. He also breached a probation order in August 2022 and was sentenced to 4 months’ imprisonment.[5]

11.  The applicant submitted that he was provoked and that the altercation was due to PW1 and PW2, who were drunk, misinterpreting his interaction with Li. However, he accepted that he had time to cool off and that he carried out a gang attack on PW1 with the use of a weapon. He also explained that he absconded because he was young and immature at the time.

12.  It was submitted that the range of sentence for Charge 1 was 7 months to 30 months’ imprisonment, and for Charge 2 was 6 months’ imprisonment. It was further submitted that the applicant should receive the full one third discount for his guilty plea despite having absconded. The applicant argued that HKSAR v Lo Kam Fai[6] should be distinguished since he had not wasted any public resources as in that case, and any reduction of the discount would constitute double punishment.

The reasons for sentence

13.  The judge gave a comprehensive set of reasons for the sentences he imposed on the applicant. [7] He took the view that the facts of the wounding offence were serious and could well be categorised as the aggravated offence of wounding with intent. He considered that the offence was aggravated because it was a reprisal attack by a gang of three men with metal bars against an unarmed person, who focused their blows on PW1’s head. He adopted a starting point of 2 years and 8 months’ imprisonment because the culpability of the applicant’s offending was near the top of the scale. He only granted the applicant a discount of 25% for his guilty pleas in line with Lo Kam Fai, resulting in a sentence of 24 months’ imprisonment.

14.  The judge noted that the applicant had voluntarily returned to Hong Kong and adopted a starting point of 6 months’ imprisonment for Charge 2, which he discounted by one third for his timely guilty plea.

15.  The judge regarded the two offences as separate and distinct and ordered that the sentences run consecutively. In the absence of any other mitigating factors, he sentenced the applicant to a total of 28 months’ imprisonment.

The grounds of appeal

16.  The grounds of appeal against sentence advanced by the applicant all concern the sentence of Charge 1, which could be summarised as follows: (1) the judge wrongly reduced the guilty plea discount from one third to 25% for his failure to surrender to custody, especially since he had been sentenced to 6 months’ imprisonment for such failure; and (2) the sentence was heavier than other similar wounding cases.

Ground 1

17.  As the Court of Appeal has repeatedly emphasised, a guilty plea discount is reduced in circumstances not to punish the applicant for absconding but for the consequences of absconding, such as whether it results in a late plea; length of time that justice has been delayed; whether the defendant surrendered to the authorities ultimately or whether it was necessary for him to be rearrested; the inconvenience and wasted expense and costs caused by the aborted scheduled hearing, to witnesses, counsel and the court: Lo Kam Fai[8]. In the present case, the applicant’s absconding had the consequences of causing inconvenience and waste to the provision of criminal justice in his case.

18.  There is no merit in the complaint of double punishment because the judge did not award the applicant a full one third discount for his guilty plea for the wounding offence when he was separately dealt with and sentenced for his absconding. The rationale for not awarding the full one third discount is the recognition that the culpability of failing to surrender to custody offence is readily distinguishable from that of the original offence from which the defendant absconded and the reason why the sentence for the failing to surrender of custody offence would normally be served consecutively to the sentence of the original offence.

19.  The rationale for why a defendant who had absconded was not entitled to a full one third discount for a guilty plea and did not constitute being punished twice for his absconding was succinctly explained by Keith JA, giving the judgment of the Court of Appeal, in HKSAR v Poon Chum Kong:[9]

“The reason why the discount is reduced in the circumstances is because the plea of guilty is not tendered at the earliest opportunity. Indeed, the effect of the appellant absconding was that there had to be a second trial. He was not therefore being punished for absconding. He was being denied the discount to which he would otherwise have been entitled because of the consequences of his absconding, namely that his plea of guilty was in the circumstances a late plea and that a second trial was necessary.”

20.  The complaint of double punishment raised by the applicant is misconceived. The rationale for not awarding a full one third discount for the applicant’s guilty plea of the wounding offence was because it was not tendered at the earliest opportunity. The sentence for failing to surrender to custody offence lies in the contemptuous breach of a promise to a court, which brings the administration of justice into disrepute: Lo Kam Fai [10].

Ground 2

21.  There is no sentencing guideline for the offence of wounding, but reference may be made where appropriate to the sentencing considerations of wounding with intent as set out in HKSAR v Ma Tik Lun Dicky[11]:

“40. In HKSAR v Chan Chun Tat [2013] 6 HKC 225, the Court of Appeal reiterated that ‘wounding with intent’ is a serious offence which warrants a deterrent sentence, and that the major sentencing considerations are:

(1) the extent to which the assault was premeditated;

(2) the motivation underlying the assault;

(3) the mental or emotional state of the assailant;

(4) whether the assailant was acting under the influence of alcohol or drugs;

(5) whether the assault was committed by the assailant alone or as part of a group;

(6) the type of weapons employed;

(7) the level of force used;

(8) the injuries caused to the victim;

(9) the effect of the assault upon the victim (and those close to him or her).

The Court of Appeal also pointed out that in respect of certain acts of violence, such as those involving triad gang attacks, the court must issue strong denunciation and impose sentences with a greater deterrent effect.

41. Furthermore, the aggravating factors for this type of wounding case are: (1) the defendant was the principal offender; (2) the assault was committed in company; (3) the assault was unprovoked; (4) the assault took place in a public place; (5) the assault went on after the victim had fallen down; (6) the assault went on after the victim became unable to defend himself; (7) the victim suffered serious and lasting injuries; (8) at the police interview, the defendant misled the police as to the facts, indicating a lack of remorse. See paragraph 13 of the Reasons for Judgment in HKSAR v Chui Kwok Ming, CACC 380/2013 (unreported), 27 March 2014.”

22.  In the present case, a starting point close to the maximum penalty adopted by the judge for Charge 1 was not inappropriate in light of the level of seriousness of this offence. It was a planned gang attack where the assailants used metal bars to beat the victim, directing their blows to his head, which was particularly dangerous: SJ v Chan Kin Pong Bonny [12].

Conclusion

23.  The grounds of appeal advanced by the applicant have no merit. This was a serious case of wounding, and the judge was not acting outside the relevant sentencing considerations in adopting a starting point in the upper region of the level of punishment for this offence. The judge was also correct not to afford the applicant a full one third discount for his guilty plea because, as a consequence of his absconding, it was not tendered at the earliest opportunity and, in effect, warranted a second trial. Accordingly, the application for leave to appeal against sentence is refused.

24.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, 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 his application.