THE SUPREME COURT OF SAMOA
Police v Chen [2017] WSSC 9

Case name: 	Police v Chen	
		
Citation: 	[2017] WSSC 9	
		
Decision date: 	14 February 2017	
		
Parties: 	POLICE (Prosecution) v ZHUJIAN CHEN male of Siusega and China (Accused)

Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	Criminal 	
		
Place of delivery: 	The Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Tafaoimalo Tuala Warren	
		
On appeal from:		
		
Order:	•	The accused is convicted of the offences of causing actual bodily harm and assault and ordered to come up for sentence in 12 months time, pursuant to s.73 of the Sentencing Act 2016. The accused should be mindful that if he reoffends within that time, he will be brought back and sentenced for this offence, and he may possibly then receive a custodial sentence. I also make an order pursuant to section 73(3)(a) Sentencing Act 2016 that the accused pay Court costs of $1000.00 forthwith, in default 6 months imprisonment. 

Representation: 	L. Sio for Prosecution
R. Faaiuaso for the Accused

Catchwords: 	causing actual bodily harm, and assault	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 section.119(1), section 123, Sentencing Act 2016 section 73, section 73(3) (a)	
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

ZHUJIAN CHEN male of Siusega and China
Accused

Counsel:
L. Sio for Prosecution
R. Faaiuaso for the Accused

Sentence: 14 February 2017
S E N T E N C E
The charges
1.	The accused appears for sentence on one charge of causing actual bodily harm pursuant to section 119(1) of the Crimes Act 2013 which carries a maximum penalty of 7 years imprisonment, and one charge of assault pursuant to section 123 Crimes Act 2013 which carries a maximum penalty of 1 year imprisonment.
2.	He was found guilty of both charges on 25 January 2017 after a defended hearing.
The offending 
3.	 The accused and the victim (Wilson) both  run retail shops close to each other. The accused who was not happy with the victim about losing bus business to the victim’s shop sent a message expressing his anger and threatening to beat up the victim. 
4.	After the Chinese Embassy function on 28 January 2016, the accused stopped at the victim’s shop to buy water.  The accused was angry and asked for the victim. The victim heard that the accused was looking for him, so he rang the accused to enquire why he was looking for him. The accused told him that he wanted to beat him up. 
5.	The victim suggested they meet at his place at Vaitele. The victim had intended to talk with the accused to sort out matters. The victim informed his parents of the meeting and went with his father. The accused went to Vaitele in his blue car (Prado). The accused went with others. 
6.	The victim’s mother arrived at Vaitele after the victim and the accused. She brought the cousin of the accused to defuse the situation. Upon arrival, she walked to the accused using a scolding tone with him. The accused said to her “laa fasi loa oe” (I am going to beat you now) and then punched her once on the head with a closed fist. She fell down. The victim and his father came running. The victim was beaten up and the accused was the main person who beat him all over his body while his mother was hugging him. The accused was swearing. 
7.	The victim sustained a mildly swollen upper lip and a left elbow abrasion after the beating.  When an altercation broke out between the victim’s workers and those who came with the accused, the accused ran to his car and drove his car into the victim.  The victim was saved by his mother when she pulled him away and the car fortunately hit him on the side of the leg. The victim experienced right thigh pain.
8.	Both the victim and his mother were medically examined at hospital. The victim’s mother had no visible physical injuries, but complained of headache and dizziness. The victim sustained a mildly swollen upper lip, a left elbow abrasion and right thigh pain.
The accused 
9.	As shown in the pre-sentence report, the accused is 24 years old and married with two children. He and his family live at Tanugamanono and operate Princessa supermarket which is a family owned business.
10.	The accused came to Samoa in 2006 and attended St Joseph’s College for three years from Years 10-12. He left school due to language difficulties and helped his parents with their shop at Motootua.
11.	His father in law told Probation that the accused is a generous and loving person especially towards the elderly.
12.	There are testimonials from his religious leader and village mayor. Both say he is an active member of the church and village.  
13.	There has been no reconciliation of this matter although Counsel says there have been efforts on the part of the accused.
14.	He is a first offender.
The victims 
15.	There are two victims of this offending. The first is Wilson Fang and the second is his mother.
16.	Wilson says that apart from the physical injuries, he still feels angry and disappointed with the accused. He finds it hard to move on as his security and safety were affected by the actions of the accused. He continues to feel sorry for his elderly parents and the impact this has had on them.
17.	He says that the local Chinese community now frown on him and his family for reporting the matter to Police, which has in turn affected his business relationship with other Chinese business people.
18.	There has been no reconciliation or apology by the accused.
19.	Wilson’s mother says she will never forgive the accused nor can she forget that he hit her.
Aggravating features of the offending
20.	It is aggravating that there were two victims of the offending by the accused and it involved actual violence. 
21.	It is aggravating that Wilson suffered physical injuries as a result of the actions of the accused, being a mildly swollen upper lip, a left elbow abrasion and right thigh pain.
22.	Not only did the accused physically beat Wilson, he then drove his car into him.
23.	I find it aggravating also that the other victim was an elderly woman.  She was vulnerable given her age. This goes against our cultural respect for elders. 
24.	The impact on both victims is an aggravating factor. Both have expressed difficulty in moving on after the offending as it was such a traumatic experience for both.
25.	I find this offending was premeditated given his anger at Wilson Fang about the bus situation. 
Mitigating Factors
26.	His favourable testimonials from his father in law, religious leader and village mayor are taken into account. 
27.	I take into account that he is a young businessman with a young family. 
Discussion
28.	Prosecution does not recommend a suitable sentence but stresses the impacts of the offending on the victims. Prosecution concedes that the offending is at the lower end of the gravity of such types of offences.
29.	Probation recommends a hefty fine.
30.	Defence Counsel recommends that a fine is a suitable sentence.
31.	Having taken into account the aggravating features of the offending, I find that for the accused, a non-custodial sentence is appropriate today. I am concerned about his lack of remorse in being unwilling to make amends with the victims.  but I am satisfied that this experience alone, in being arrested, having to appear in Court and receiving a conviction, has had an impact on him and has alerted him to the dangers of handling issues in an unacceptable and unlawful way. Perhaps his response is due to his age and immaturity. It is fortunate however that both victims did not sustain significantly serious injuries, although the emotional scars borne by both victims are immense and incalculable.
Sentence
32.	The accused is convicted of the offences of causing actual bodily harm and assault and ordered to come up for sentence in 12 months time, pursuant to section 73 of the Sentencing Act 2016. The accused should be mindful that if he reoffends within that time, he will be brought back and sentenced for this offence, and he may possibly then receive a custodial sentence. 
33.	I also make an order pursuant to section 73(3) (a) Sentencing Act 2016 that the accused pay Court costs of $1000.00 forthwith, in default 6 months imprisonment. 

JUSTICE TAFAOIMALO TUALA-WARREN