The Director of Public Prosecutions v Zhang & Tang (Approved) [2025] IECA 73 (30 January 2025)

THE COURT OF APPEAL

Neutral Citation No. [2025] IECA 73

Court of Appeal Record Nos. 243/2024 and 244/2024

Edwards J

McCarthy J

MacGrath J

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

BETWEEN/

THE PEOPLE (AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS)

APPLICANT

-AND-

DAWEI ZHANG

-AND-

HAN CHUNG TANG

RESPONDENTS

JUDGMENT of the Court delivered (ex tempore) on the 30th day of January 2025 by McCarthy J

1. This is an application pursuant to section 2 of the Criminal Justice Act 1993 for a review of sentence on grounds of undue leniency in respect of two sentences imposed in the Central Criminal Court on Bill No: DUDP175/2020A. Dawei Zhang, the 'first-named respondent' herein, and Han Chung Tang, the 'second-named respondent' herein, were each charged with one count of assault causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997, one count of production of a weapon contrary to section 11 of the Firearms and Offensive Weapons Act 1990, and one count of affray contrary to section 16 of the Criminal Justice (Public Order) Act 1994. The first-named respondent was indicted on a further count of assault causing serious harm contrary to section 4 of the Non-Fatal Offences Against the Person Act 1997; however, a nolle prosequi was entered in respect of that charge during a sentencing hearing on the10th of October 2023. Each of the respondents pleaded guilty to the counts of assault causing harm and production of a weapon; with the count of affray taken into consideration. The sentencing hearing was adjourned to allow for the preparation of probation reports, and subsequently adjourned again to ascertain whether the respondents were suitable candidates for community service and an anger management course. On the 29th of July 2024, the first-named respondent was sentenced to post-mitigation sentences of two and a half years' imprisonment in respect of the count of assault causing harm and two years' imprisonment in respect of the count of production of a weapon, to be served concurrently. On the same date, the second-named respondent was sentenced to post-mitigation sentences of two years' imprisonment in respect of the count of assault causing harm and one and a half years' imprisonment in respect of the count of production of a weapon, to be served concurrently. The sentencing judge ordered each respondent to serve 240 hours of community service, within 12 months of the date of sentence, in lieu of the period of imprisonment.

Factual background

2. We will now outline the facts of the matter insofar as they are relevant to this application.

3. The offending behaviour in this matter occurred on the 27th of July 2019 on the premises of a Chinese takeaway on Sundrive Road, County Dublin. One Detective Garda Marcus Regan provided evidence at the sentencing hearing that, on the aforementioned date, both respondents presented for work at the premises just before 3 p.m. There was evidence that relations between the respondents was tense and that they had previously engaged in verbal altercations with one another. On the day in question, the respondents began arguing about who the better chef was, and this escalated into a physical altercation between the respondents. This altercation was witnessed by two colleagues a kitchen porter, Mr Ko Cheng Chua, and the front desk operative, Ms Chang. Mr Chua intervened and stopped the fighting, he then rang their boss to inform him of the disharmony and was instructed to send the second-named respondent—who lived in a bed-sit located at the back of the premises—home from work; however, nobody left the premises.

4. CCTV footage showed that at approximately 4:08 p.m. the respondents began arguing again. Mr Chua left the kitchen to ring his boss. When Mr Chua returned to the kitchen, he saw blood all over the floor and witnessed the first-named respondent rinsing a wound on the back of his head which was bleeding. He heard the second-named respondent call from a yard at the rear of the premises and discovered him collapsed on the ground in the yard. Mr Chua called for an ambulance.

5. Gardaí attended at the premises and preserved it as a scene of crime. They observed a trail of blood leading from the kitchen to the yard as well as on worktops and other areas of the kitchen. They found the second-named respondent conscious, but his breathing was distressed and he had a large gash in his back. The gardaí attempted to staunch the flow of blood from the wound. The respondents were subsequently transferred to St James' Hospital in separate ambulances.

6. The sentencing judge (as do we) had the benefit of medical reports which were obtained pursuant to section 35 of the Non-Fatal Offences Against the Person Act 1997. The first report of one Dr Muneeb Shahid disclosed that the first-named respondent received wounds to his scalp, shoulder, and chest and was discharged late in the evening on the 27th of July 2019. The second-named respondent received more severe injuries. According to the report of one Dr Tadhg Moriarty, the second-named respondent received multiple stab wounds to his head, back, and arm and sustained further wounds to his chest and lower-back. The report outlines that the second-named respondent was tachycardic and hypotensive, indicating significant haemorrhaging, and required a massive blood transfusion. He spent several days in intensive care.

7. The second-named respondent completed a victim impact statement; although we cannot set this out in extenso it suffices to state that the statement outlined a lengthy recovery from the injuries he sustained during the incident. The statement recorded that the second-named respondent was unable to work for a period of 16 weeks and that he attended several private physiotherapy sessions. He reported that his family provided him with financial support during this period by sending him money from abroad. He stated that, since incurring these injuries, he can no longer carry heavy items and that he has suffered from intermittent headaches and insomnia.

8. Each respondent was arrested after being discharged from hospital and interviewed by gardaí. Both respondents provided extensive, but differing, accounts of the incident to gardaí, such that Detective Garda Regan accepted the characterisation of these accounts, put to him by counsel for the first-named respondent in cross-examination, as "self-serving".

9. The first-named respondent was arrested and interviewed by gardaí on the 27th of July 2019 in the presence of his solicitor and an interpreter. He described a sequence of events to gardaí which began with the second-named respondent accusing him of not performing his duties and culminated in the first physical altercation between him and the second-named respondent which Mr Chua intervened in. He told gardaí that when both respondents returned to the kitchen shortly afterwards, they recommenced their verbal argument and began another physical altercation. He informed gardaí that the second-named respondent armed himself with a meat cleaver during this altercation and struck him on the head and shoulder with it. He described how the second-named respondent eventually retreated towards the bedsit at the rear of the premises and stated that he armed himself with a meat cleaver and followed the second-named respondent into the yard. He claimed that the second-named respondent charged at him outside and attempted to strike him with the meat cleaver. The first-named respondent admitted to striking the second-named respondent several times with a meat cleaver, claiming he did so "blindly" because blood was covering his eyes. The first-named respondent maintained that he acted in self-defence during the incident. When asked why he didn't walk away, he replied that he was too weak to do so and that he wanted to ensure that the second-named respondent didn't escape.

10. The second-named respondent was arrested upon being discharged from hospital on the 31st of July 2019. In his version of events, the second-named respondent claimed that the first-named respondent was the one to escalate both arguments into physical altercations. He told gardaí that, during the second physical altercation, the first-named respondent had grabbed him by the neck (he suggested that the first-named respondent attempted to drag him out to the yard—where there was no CCTV camera—when he did so) and struck him repeatedly until the second-named respondent fell to the floor. The second-named respondent claimed that he was bleeding from his ear after being knocked to the floor, and he admitted to grabbing the meat cleaver and striking the first-named respondent with it (though he claimed he did so "lightly"). He stated that he eventually retreated from the kitchen into the yard and disarmed himself. He alleged that the first-named respondent ran out after him and struck him several times with a knife on his shoulder, head, and back until he was bleeding heavily.

Personal circumstances

11. The judge adjourned the sentencing hearing on the 10th of October 2023 and ordered a probation report be prepared in respect of each respondent. The sentencing judge (as do we) had the benefit of those reports during the hearing on the 12th of February 2024.

12. On the date of the hearing, the first-named respondent was 37 years of age. He is originally from China and had been living in Ireland for a number of years. Counsel informed the Court that the first-named respondent has one young child—who is an Irish citizen—with an ex-partner (Detective Garda O'Regan confirmed that deportation proceedings concerning the first-named respondent had commenced in 2017, he claimed asylum and INIS granted him leave to remain in May 2018 on the basis that he is the father of an Irish-born child; however, there is some uncertainty regarding his status going forward). Counsel informed the Court that the first-named respondent opted against returning to work at the restaurant where the offending behaviour occurred and was subsequently employed by his ex-partner as a chef in a different Chinese restaurant. The first-named respondent has no previous convictions in this jurisdiction and has not come to the adverse attention of an Garda Síochána since the offending in this matter. The probation report did not recommend any further engagement with the Probation Service, and he was assessed as being a suitable candidate for community service.

13. Counsel for the second-named respondent noted that the probation report accurately set out the mitigation available to the second-named respondent and assessed him as being at a low risk of re-offending. Counsel noted that the second-named respondent was 45 years of age at the date of sentencing and came to Ireland from Malaysia to improve his quality of life (Detective Garda O'Regan confirmed that the second-named respondent was present in the country illegally). He informed the Court that the second-named respondent was then working six days a week as a chef at a different Chinese restaurant (his employment at the restaurant where the offending occurred was terminated after the incident). The second-named respondent has no previous convictions in this jurisdiction and has not come to the adverse attention of an Garda Síochána since the offending in this matter. The probation report did not recommend any further engagement with the Probation Service, and he was assessed as being a suitable candidate for community service.

14. Counsel submitted that the fact that both respondents were also victims of the offending behaviour is an unusual aspect of the present case—counsel for the first-named respondent ventured to submit that this fact, coupled with the respondents' lack of previous convictions, could distinguish the respondents' circumstances from those of the accused in The People (DPP) v. McGrath, Dolan and Brazil [2020] IECA 50.

Sentencing remarks

15. Sentencing was adjourned until the 29th of July 2024 to facilitate an assessment of the respondents' suitability for community service.

16. When identifying the mitigating factors, the sentencing judge had regard to the fact that the respondents have no previous convictions, a good work history and have not come to adverse Garda attention since the incident. She also took the pleas of guilty into consideration, as well as the respondents' engagement with the Probation Service and the efforts made by them toward rehabilitation—and further noted the difficulties associated with engaging with that service as non-nationals who require the use of an interpreter. The sentencing judge had regard to the personal circumstances and age of each respondent and further noted that the first-named respondent is the father of a young child and had participated in an anger management course.

17. The sentencing judge summarised the aggravating factors of the offending in the following way:

"So firstly having regard to the respective counts to which both of them pleaded to on the date which was in a consolidated indictment, noting by virtue of the global aggravating features the simmering aggression was obvious for a period of time and was shocking in how it resulted in the assaults that were perpetrated on each other. Noting the nature of the assaults with the use of a knife and a meat cleaver and its duration. Those weapons utilised were dangerous and the fact that there were two separate incidents indicated that the violence was gratuitous and the braze and aggression didn't -- in the presence of others didn't deter them from assaulting each other. [The first-named respondent] was clearly more aggressive and culpable and thereafter concerning when one viewed him in the aftermath of the assault, he was very calm as he resumed his work in the kitchen. Noting [the second-named respondent's] injuries, they were clearly very serious and having regard to the evidence of Garda O'Regan who described blood everywhere, there was multiple injuries as a consequence where there was significant bleeding which required blood transfusions and he was out of work 16 weeks and as a consequence he lost his home, and that which was the bedsit on the premises. So I must have regard to that."

18. Having regard to those factors, the sentencing judge nominated headline sentences of 4 years' imprisonment and 3 years' imprisonment for the counts of assault causing harm and production of a weapon, respectively, pertaining to the first-named respondent. Regarding the counts of assault causing relating to the second-named respondent, the judge nominated a headline sentence of three and a half years' imprisonment and noted that the offending relating to the count of production of a weapon fell within the upper-range of gravity. Having regard to the mitigation available, the sentencing judge imposed, in respect of the first-named respondent, concurrent post-mitigation sentences of two and a half years' imprisonment for the count of assault causing harm and two years' imprisonment for the count of production of a weapon. Similarly, in the case of the second-named respondent concurrent post-mitigation sentences of two years' imprisonment in respect of the count of assault causing harm and one and a half years' imprisonment in respect of the count of production of a weapon were imposed.

19. The sentencing judge then ordered each respondent to perform 240 hours of community service within twelve months of the date of sentencing in lieu of the periods of imprisonment identified. When making that order, the sentencing judge noted, inter alia, that:

"...both [of the respondents] are working and are gainfully employed and can utilise and demonstrate the skills that they acquired by virtue of their cooking and that would be of assistance. The course in terms must be incorporated into the sentence structure but it's very clear that in the period of time that has elapsed between the time of the sentence hearing and today's date they have engaged genuinely and proactively with the rehabilitation so it can be dealt with in that fashion."

Grounds of appeal

20. The applicant submits that the sentences imposed by the judge were unduly lenient on the following grounds: -

1) The learned sentencing Judge erred in placing too much weight on the mitigating factors.

2) The learned sentencing Judge erred in placing too little weight in the aggravating factors.

3) The headline sentence arrived at by the learned Sentencing Judge was too low in the circumstances of the case.

4) The reduction afforded by the learned Sentencing Judge for mitigation was too great in all the circumstances.

5) The learned Judge erred in principle and in law by imposing community service instead of an immediate custodial sentence.

6) The learned Judge erred in placing too much emphasis on rehabilitation, unduly displacing consideration of general deterrence and punishment.

We propose to deal with all grounds together having regard to the way in which oral argument developed. We can say at this stage that we do not find the headline sentences identified as unduly lenient, and we proceed accordingly. In truth there was no real dispute between the prosecution and defence as to whether or not a carceral element was presumptively necessary in cases of violence of this kind and the argument hinged on whether or not having regard to the totality of circumstances this was one of those exceptional cases which permitted the judge to deal with the matter without a period in custody.

Analysis

21. The fundamental reason for the presumptive approach is the necessity for punishment of serious assaults involving the use of weapons, in the present case, meat cleavers, and giving rise to serious injuries (which were suffered certainly by the second-named respondent without losing sight of those suffered by the first-named respondent, although of lesser significance). A further factor giving rise to that approach is the need for general deterrence and, in some cases, specific deterrence (although the latter does not arise here). Counsel for both respondents have submitted that this is one of those exceptional cases in which a non-custodial sentence is justified. We have already referred, inter alia, by reference to the judgment, to both the aggravating and mitigating factors. In effect, both accused rely on the mitigating factors, cumulatively in each case, to justify the proposition that this is such an exceptional case. We do not agree. We have referred to the primary reasons why custody is appropriate, presumptively, in these cases. All of those factors (with the exception of specific deterrence) arise here. In effect, there are extensive mitigating factors but that is a different thing in principle. The mitigating factors result, of their nature, in a sentence lesser than the headline sentence. The custody threshold has been crossed. We think that the judge accordingly fell into an error in principle by not imposing a custodial element in the sentences. We accordingly quash the sentences on the grounds that they are unduly lenient and proceed to resentence de novo.

22. In doing so, we have available to us the material before the trial judge and her findings of fact. We are told, and it is accepted, that both respondents conformed to the directions of the Probation Service. The first-named respondent undertook an anger management course, the second-named respondent, through no fault of his own, was unable to participate on such a course. We accept counsel's assurance that they have continued to be of good behaviour and performed the obligations upon them contemplated by the sentencing judge.

23. We think that there is no real distinction between the respondents in the present context; accordingly, we largely share the view of the sentencing judge. We think that it is appropriate to nominate a headline sentence of 4 years' imprisonment on the counts of assault causing harm and production of a weapon (the sentences to run concurrently) and to mark the counts of affray as taken into consideration. We think that in each case the actual sentence should be one of two and a half years' imprisonment because of the factors in mitigation. We also take into account the fact that the respondents are foreign nationals. We think that to further encourage continued efforts at rehabilitation and to encourage good behaviour we will suspend the last twelve months of each sentence on the terms that the respondents keep the peace and be of good behaviour and, putting the matter shortly, to obey the directions of the Probation Service (if any). In approaching the matter on this basis, we also take into account the fact that extensive community service has been undertaken under the order of the Circuit Court.

Result: re-sentence

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