THE SECRETARY FOR JUSTICE v. VO VAN HUNG

CAAR 16/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 16 OF 2001

(ON APPEAL FROM DCCC 694 OF 2001)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 22 November 2001, following a trial in the District Court before Judge Chua, the Respondent, aged 22, was sentenced to two years' imprisonment on a charge of attempting to cause grievous bodily harm with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212. The intended victim of this offence was a Correctional Services Department Inspector (PW1) who had the duty of monitoring the prisoners in the garment workshop at Stanley Prison. Bearing in mind that the Respondent was then serving a sentence of twenty-nine years' imprisonment for murder, the judge ordered that only two months of the sentence she imposed should run consecutively, with the remaining twenty-two months to be served concurrently.

2. On 13 December 2001, leave was granted to the Secretary for Justice (the Applicant) to apply to the Court of Appeal for a review of sentence, pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221.

3. The facts clearly emerge from the Reasons for Verdict.

4. The Respondent had been reprimanded by PW1 in the month before the offence. During the evening on 12 March 2001, PW1 refused the Respondent permission to leave his cell to brush his teeth.

5. On 13 March 2001, while PW1 was at his desk supervising inmates in the workshop, the Respondent approached him with a plastic mug in his left hand. This contained lubricating oil which he had extracted from a sewing machine. In his right hand he held a bag of sweets, which hid a plastic lighter. PW1 testified that after the Respondent had made a request for hot water, which was granted, the Respondent offered him sweets. PW1 declined and the Respondent apologised for the trouble he had caused since joining the workshop. PW1 told the Respondent that if he behaved in the future all that would be put in the past. After he said he wanted to apologise profusely, the Respondent dropped the sweets he was holding and threw the contents of the mug at PW1. At the same time, PW1 noticed the hissing sound of gas escaping from a cigarette lighter. The judge's summary of PW1's evidence concerning this stage of the incident stated that after PW1 had felt the liquid from the mug splash onto his face, PW1 had gone on to say:

"At the time I could smell sewing machine lubricant and I saw that that prisoner .... was holding a green plastic lighter in his right hand and was going to light it against my face. At the time I immediately stood up. I brushed the lighter in his hand off with my right hand." (Appeal Bundle p. 9)

6. Another officer, a little distance away, saw the Respondent thrust the lighter in front of PW1.

7. In his testimony, the Respondent said that he was aggrieved at being picked on by PW1, who he felt was prejudiced against him because he was Vietnamese. He decided, therefore, to create an incident which would result in him being removed from PW1's supervision. He put oil in the cup, intending to give PW1 another chance, and pleaded with him not to discriminate against him. When PW1 replied: "Don't think of that", he interpreted this as a refusal to give him another chance. Intending only to threaten him, and to effect a 'separation', he threw the liquid at PW1 and used the lighter to threaten him. He denied attempting to ignite the flame. He disagreed with PW1's allegation of what he was supposed to have said after the incident, namely: "This time I can't burn you. Next time I'll burn you to death." His version was that he had said: "This time I don't burn you but if you bully me again I'll burn you."

8. The judge concluded that she was able to be sure that PW1 had described truthfully and accurately what had happened including the threat uttered by the Respondent. She decided that the Respondent, irritated by PW1's refusal on the previous evening to accede to his request, had decided to get even with PW1. The judge inferred from the evidence that the Respondent "attempted to set (PW1) alight to cause him grievous bodily harm". In fact, as evidence called by the prosecution showed, the oil could not have ignited in a normal ambient room temperature, but this was something about which, the judge concluded, the Respondent would have been unaware.

Reasons for sentence

9. In her Reasons for Sentence, the judge briefly set out the circumstances in which the Respondent had murdered a fellow inmate on 6 January 1994 at a Vietnamese Detention Camp following a quarrel with the deceased. The Respondent was originally sentenced to life imprisonment but on 6 March 1998 this was reduced on appeal (CACC 417/1994) to twenty-nine years' imprisonment, leaving him with an anticipated date of release in March 2013. The Respondent will then be thirty-four years old.

10. Turning to the facts of the present case, the judge said that the Respondent had:

".... seethed overnight and planned an elaborate subterfuge to get even ...." (Appeal Bundle p. 14)

The judge went on to say that the offence committed by the Respondent indicated:

".... a person who needs to work out his rage, to understand his warped and violent reactions and his need to vent his anger and take revenge. This is a serious offence committed on an officer who maintains discipline with a good heart. When he (PW1) said to the defendant 'Don't think of that', he was in fact telling the defendant his past misdeeds and behavioural problems would be forgotten .... his plea of not guilty reflects his recalcitrant attitude." (Appeal Bundle pp. 14-15)

11. In making the order that twenty-two months of the two-year sentence should run concurrently, the judge said she was taking a "global view" of the offence.

The application

12. It was submitted that the sentence of two years' imprisonment was manifestly inadequate and that the judge had also erred in principle when she ordered that all but two of the twenty-four months' imprisonment imposed should run concurrently with the pre-existing sentence.

13. The judge, it was argued, ought to have passed a sentence which emphasised the need to afford proper protection to staff of the Correctional Services Department in the discharge of their duties, a sentiment expressed by Penlington JA in R v Hui Man-lee CACC 399/1993 in these terms:

"We would reiterate again that anybody who attacks a public officer who is simply carrying out his duties, a task which is often unpleasant, can expect no sympathy from the courts."

14. With this in mind, Mr Cross, SC, for the Applicant, contended that a sentence was required which would deter others from committing dangerous acts of a similar nature upon security personnel. He reminded us of the way in which Huggins J (as he then was) had expressed the courts' duty in R v Lui Wai-chun [1946-1972] HKC 111, 113 where he said:

"The Prison Service and the Police Force do a great service to the community under difficult and sometimes dangerous conditions. We think it is the duty of the court to do nothing which may increase their difficulties and dangers by leading criminals to believe that they can use violence, of whatever degree, with the risk of only small loss to themselves."

15. Mr Cross submitted that, albeit the Respondent was serving a long term of imprisonment, a substantial and consecutive sentence of imprisonment was nevertheless required for this offence. In this context, he prayed in aid the words of Lord Taylor CJ in R v Mark Paul Azzopardi and Others [1996] 1 Cr App R (S) 124, 127:

"Where serious offences are committed in prison it is necessary that a sentence consecutive to that which the prisoner is already serving should be imposed. If that were not the case then those in prison could have a free run to commit offences, knowing that they are already serving a substantial sentence and that the courts would take the view that it should not be added to and they would receive merely a concurrent sentence. We consider, in the public interest and for the maintenance of order in prisons, that if a serious offence is committed in prison a consecutive sentence is appropriate."

Respondent's reply

16. Ms Margaret Crabtree, on the Respondent's behalf, submitted that as very little harm beyond "mild redness over (PW1's) eyeball" was in fact suffered by PW1, the sentence imposed was neither unduly lenient nor, having regard to the fact that it was largely ordered to run concurrently with the pre-existing sentence, wrong in principle.

Conclusion

17. We are satisfied that a two-year sentence, with an effective additional penalty of two months' imprisonment, for what was undoubtedly a most serious offence, was wholly inadequate. In our view, it in no sense provided any sort of protection for Correctional Services Department personnel who do their best, as the judge had aptly expressed it, to maintain discipline "with a good heart". The intended consequences of this offence were dire in the extreme and it was the victim's sheer good fortune that the Respondent had found an oil with a flashpoint which rendered impossible his attempt to burn PW1.

18. We consider, in all the circumstances, that a sentence of five years' imprisonment would have been appropriate. We shall, therefore, allow this application and quash the sentence of two years' imprisonment imposed in the lower court which we have found to be manifestly inadequate. However, as this represents a substantial increase of sentence by way of review, we propose to pass a sentence of four and a half years' imprisonment in substitution.

19. We should say, for the sake of clarity, that we also consider that it was wrong in principle for the judge in the lower court to have made the term of imprisonment she imposed to run concurrently, except to the extent of two months, to the sentence the Respondent was already serving. In cases of this kind, questions of totality will necessarily play a minimal role. In this case, we are satisfied that there is no warrant for ordering part of the sentence to run concurrently.

20. We shall order, therefore, that the whole of the sentence of four and a half years which we have substituted today should run consecutively to the Respondent's existing sentence of twenty-nine years' imprisonment and consecutive also to the effective additional term of imprisonment for one month for assault occasioning actual bodily harm which was imposed in another court on 21 January 2002.