R v Hsu & Hsu - [1998] QCA 257

COURT OF APPEAL

[1998] QCA 257

McMURDO P PINCUS JA MACKENZIE J

CA Nos 199 of 1998

200 of 1998

THE QUEEN
v.
MORGAN HSIU-MING HSU and

MAO SUNG HSU	Applicants
BRISBANE ..DATE 07/08/98
JUDGMENT

070898 T20/LZG14 M/T COA189/98
THE PRESIDENT: The applicants each pleaded guilty to two
counts of assault occasioning bodily harm whilst armed. They
were sentenced in the District Court, Brisbane, each to two
years imprisonment with a recommendation for parole after
eight months. They have no prior convictions.

The learned sentencing Judge observed there had been family feuding and some episodes of violence between the family of the applicants and the family of the complainants although the last significant incident was about a year before these offences occurred and passions should have had time to cool. The offences occurred in the Karaoke Lounge at the Sunnybank Hotel. Both complainants and applicants were of Taiwanese descent. The complainants Yung Chuan Chen, aged 19, and Yung Pi Chen, aged 16, were brothers. The applicants, Morgan Hsiu- Ming Hsu, 20 at the time and 21 now, and Mau Sung Hsu, aged 26 at the time and 27 now, were also brothers.

At about 1.30 a.m. on 30 December 1997 a group of people, including the applicants, entered the bar. A dispute arose whilst they were in the bar over some petty matters. The applicant Mao lifted his clothing to reveal a revolver and Morgan said, "Later." Mao said, "Just hit him." Morgan walked over to the complainant Yung Chuan Chen, picking up an empty beer bottle, and struck the complainant over the back of his head, smashing the bottle. The complainant felt pain and his head started to bleed. He was set upon by three to four others and was punched and kicked all over his head and shoulders and felt more glass breaking over his arms and body.

He suffered a swollen and bruised left eye, tenderness of the

070898 T20/LZG14 M/T COA189/98
inferior orbital margin, lacerations to his left eyebrow and
ear. His scalp and neck wounds were sutured.

The complainant Yung Pi Chen was then hit by the applicant Mao with the bottom of the hand gun. Other patrons, seeing the hand gun fled or sheltered under tables. Morgan hit this complainant on the head with a drinking glass which broke on impact. The complainant suffered a 15 centimetre graze to the back of his head, multiple lacerations to his left fifth finger which was fractured, multiple minor abrasions to his right elbow and upper arm. He required stitches to his head and finger area.

As the learned sentencing Judge noted, it is fortunate the injuries were not more serious. Eye witnesses and a surveillance video implicated the applicants. Prosecution witnesses were cross-examined at a committal proceeding.

The learned sentencing Judge understandably took a serious view of the case. A gun was displayed to intimidate and physical injuries were inflicted with a glass and a beer bottle.

His Honour described the incident as a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hsu & Hsu

Details

AGLC: R v Hsu & Hsu [1998] QCA 257
Case: [1998] QCA 257
Decision Date: 7/08/1998

CaseChat Overview and Summary

The applicants, Morgan Hsiu-Ming Hsu and Mao Sung Hsu, appealed against their sentences for assault occasioning bodily harm while armed. The applicants, brothers, were convicted and sentenced to two years imprisonment each, with a recommendation for parole after eight months. The Court of Appeal granted the application for leave to appeal and set aside the sentences imposed by the District Court, Brisbane. The applicants had no prior convictions and the offences occurred in a Karaoke Lounge at the Sunnybank Hotel, where a dispute arose over petty matters. Morgan assaulted Yung Chuan Chen with an empty beer bottle, while Mao assaulted Yung Pi Chen with a revolver. The applicants argued that the learned sentencing judge erred in considering the incident as a "gangster-style raid" and in taking this into account during sentencing.

The legal issues before the Court of Appeal were whether the sentencing judge erred in considering the incident as a "gangster-style raid" and whether the sentences imposed were outside the range that would have been expected. The Court of Appeal found that the sentencing judge did err in taking into account the fact that it was a "gangster-style raid" in sentencing, as it was not a disputed fact and the judge was not entitled to do so. This resulted in a miscarriage of the sentencing process, and the Court had to exercise its sentencing discretion afresh.

The Court of Appeal concluded that the facts of the offence were serious, but the sentences imposed by the District Court were slightly heavier than would ordinarily be imposed. The applicants each pleaded guilty to the offences and had no prior convictions. In light of the comparable sentences and general experience, the Court of Appeal found that the sentences imposed were outside the range that would have been expected. The Court granted the application for leave to appeal, set aside the sentences imposed by the District Court, and exercised its sentencing discretion afresh. Morgan Hsiu-Ming Hsu was sentenced to 12 months imprisonment, suspended after serving four months, with an operational period of two years. Mao Sung Hsu was sentenced to 18 months imprisonment, suspended after serving six months, with an operational period of two years.

The Court of Appeal also ordered that warrants be issued for the arrest of Mao Sung Hsu and Morgan Hsiu-Ming Hsu and that the warrant lie in the Registry for seven days. The Court of Appeal's decision demonstrates the importance of adhering to the correct standard of proof during sentencing and the need to exercise sentencing discretion carefully, taking into account the relevant factors and comparable sentences.

Orders