THE QUEEN v. NGUYEN DINH HAO

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 473 of 1988

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J U D G M E N T

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1. The Appellant was charged with two offences, one of attempted theft and one of assault occasioning actual bodily harm. He was acquitted on the charge of attempted theft but convicted on the charge of assault occasioning actual bodily harm and sentneced to imprisonment for 12 month.

2. The charge arose out of an incident when the appellant was in the company of two others in Kimbrely Road on 24th October 1987. One of the others attempted to steal from a lady's handbag. The person who attempted to steal from the handbag was chased along Kimbrely Road for some 200 metres with the pursuer shouting "snatching". Before the pursuer caught the offender, this appellant and the other man caught up and attacked the pursuer and the offender also joined in the attack. The victim suffered a bleeding mouth as a result of the assault, but apparently no other injury. The other companions of the appellant were also charged with attempted theft and assault occasioning actual bodily harm. One was acquitted of the attempted theft charge but as he pleaded guilty to the assault charge he was sentenced to imprisonment for 6 months. The man who tried to steal from the handbag was convicted of attempted theft and sentenced to 9 months imprisonment for that offence and on his plea of guilty to the assault charge he was sentenced to imprisonment for 6 months. The magistrate ordered that that sentence be served consecutively with the sentence on the attempted theft conviction for reasons which it is not necessary for me to repeat.

3. All 3 offenders were not dealt with on the same occasion. The other two were, but this Appellant was not dealt with until some months after the others. It is true that he did originally plead guilty to the assault charge but when the facts were read out he gave a version of events which clearly snowed that he was not admitting participation in any assault on the victim. As a result the magistrate entered a plea of not guilty and the matter went to trial with the result that I have already mentioned.

4. Mr. Iu, in support of the Appellant's appeal against sentence, relies on several matters but the only one which concerns me is the question of whether in the circumstances a sentence of imprisonment for 12 months for this offence was manifestly excessive. In support of his submission, he referred me to several decisions of the Court of Appeal dealing with sentences imposed in assault occasioning actual bodily harm cases. It is common ground that the case which comes nearest to this is that of the R. v. Lin Hon-pang (A.R. No. 4 of 1986). That was a case where a tourist was the victim of a pickpocketing or snatching attempt and where the offender and 2 companions assaulted the victim after he grabbed the thief and called for police assistance. In the course of the assault the three of them caused the tourist to suffer abrasions over his nose and a broken tooth and and as a result of the assault the thief was able to escape.

5. On the application for review, the Court of Appeal after reviewing the facts went on to say this:

"No doubt the attack was to facilitate the escape of the theft. He had previous convictions. If convicted after trial he should have been awarded immediate custodial sentence of at least 6 months."

6. So in this case the appropriate sentence would appear to be an immediate custodial sentence of at least 6 months imprisonment.

7. Mr. Iu points out that in this case the injury which the victim suffered was not as serious as those suffered by the victim in the case which was the subject of the application for review. On the other hand the victim was a female. It does seem to me that, in view of what the Court of Appeal said, the appropriate sentence in this case should be an immediate custodial sentence of imprisonment for 9 months. 9 months would also appear to be the probable sentence which would have been imposed by the magistrate who dealt with the other two offenders bearing in mind that they pleaded guilty and this Appellant did not. If, therefore, he had been dealt with on the same day as the others the magistrate would have sentenced him to imprisonment for 9 months.

8. I think therefore that I should allow this appeal, quash the sentence for 12 months and substitute therefor a sentence for imprisonment for 9 months. To that extent, the appeal is allowed.