DPP v Feng Ji & Ping Li

CourtCourt of Appeal (Ireland)
JudgeMr Justice Edwards
Judgment Date17 November 2020
Neutral Citation[2020] IECA 348
Docket NumberRecord No's: 0222/2019; 0223/2019
Date17 November 2020





[2020] IECA 348

Edwards J.

McCarthy J.

Kennedy J.

Record No's: 0222/2019; 0223/2019


JUDGMENT of the Court ( ex tempore) delivered by Mr Justice Edwards on the 17th of November, 2020.

The two respondents in this case pleaded guilty to single counts of assault causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act, 1997, on the 25th June, 2019, on a full facts basis. They were remanded on bail until the 8th of October, 2019, which was later extended until the 18th of October to facilitate the furnishing to the court of a victim impact statement and Probation and Welfare Reports.


On the 18th of October, 2019, the respondents were both sentenced to two years' imprisonment, wholly suspended for a period of two years, in respect of the two counts of s. 3 assault.


The appellant now seeks a review of the sentences on the grounds of undue leniency.

Background to the matter

The second-named respondent, Hua Feng Ji, is the owner of a Spar shop on Portland Street, a share of which is also held by the first-named respondent, Hai Peng Li. The trial court heard evidence from Garda Declan Gielty, who stated that on the 8th of June, 2016, the injured party, a Mr Kieran Buckley, entered this Spar and bought a winning scratch card and cashed it. Upon leaving, an employee shouted that Mr Buckley had stolen a carton of orange juice and pulled at him. The employee said that he would ring the Gardaí. Mr Buckley told him to do so. Mr Buckley then took out his mobile device and made a phone call.


When the Gardai arrived at the scene, Mr. Buckley denied the allegation. CCTV footage was examined by the gardaí, which showed the initial skirmish, and showed the injured party being punched, kicked, and detained. Copies of the footage were requested several times, but these requests went unfulfilled. The footage was later obtained on foot of a warrant.


Gardaí arrested both respondents. Nothing of evidential value emerged out of the interview with the first-named respondent. The second-named respondent, Hua Feng Ji identified himself on the CCTV footage, and admitted being involved assaulting the injured party. He explained that his colleague had told him that Mr Buckley was stealing orange juice. He claimed that they calmly asked the injured party if he had forgotten to pay, at which point Mr Buckley became agitated. It was at this point that the assault began. There is no audio on the CCTV footage to validate this claim.


Under cross-examination, it was agreed that the footage showed Mr Buckley using his phone to ring his friend, whom arrived later. Mr Buckley did not ring the gardaí himself. The second-named respondent was worried that Mr Buckley would have friends come to the shop in order to escalate matters. He claimed that Mr Buckley was making threatening statements, but there is no audio evidence to confirm this. He maintained that whilst he had not seen Mr Buckley steal anything, he had been informed by staff that he had. It was agreed that the respondents were subjected to frequent occurrences of shoplifting, and the gardaí were aware of a recent armed robbery carried out at the Spar. He emphasised the difficulty of running a business whilst under constant threat and claimed to be “ messed up” under the circumstances. The second-named respondent then spoke of their support of the local community, such as contributing to the garda-hosted elderly charity Christmas event in Croke Park.


Both respondents were originally also charged with false imprisonment, and a trial date was sought. However, pleas of guilty to s. 3 assault were entered after the DPP agreed not to proceed with the false imprisonment charges. Garda Gielty spoke of the benefit of the plea in circumstances in which gardaí had been unable in recent times to locate Mr Buckley for the trial. It was also confirmed that a public liability insurance policy in respect of the Spar had compensated Mr Buckley.

Impact on Victim

Although the sentencing hearing was adjourned from its original date on the 8th of October, 2019, to allow for the furnishing of a Victim Impact Report, gardaí were unable to contact Mr Buckley to facilitate this. This court is bound by the s. 5(4) of the Criminal Justice Act, 1993, as substituted by s. 4 of the Criminal Procedure Act, 2010, which states as follows:

“Where no evidence is given pursuant to subsection (3), the court shall not draw an inference that the offence had little or no effect (whether long-term or otherwise) on the person in respect of whom the offence was committed or, where appropriate, on his or her family members.”


The court heard from Garda Gielty that although Mr Buckley turned down offers of transport to a hospital via an ambulance or garda car, he later presented to A&E. There, he was treated for a collapsed lung, which involved the insertion of a chest drain and required a stay overnight in hospital. He also received four stitches. Mr Buckley subsequently attended his GP for pain relief.

Circumstances of the respondents

Neither respondent has any previous convictions, and neither had come to the adverse attention of gardaí in the 3 years and 4 months before sentencing. They both entered pleas of guilty at an early opportunity. The court was furnished with Probation and Welfare Reports in respect of both respondents, which will be examined in turn below.

Hai Peng Li


The first named respondent, Hai Peng Li, was 42 years old at the time of sentencing. He is married and has a four-year old son. He underwent a kidney transplant, which requires ongoing medication and care. He has the benefit of stable accommodation, a good employment record and familial support, and had never come to the adverse attention of the gardaí.


It was said that Hai Peng Li did not cooperate with the investigation and was ambivalent regarding his belief that a theft had occurred. He gave a materially different account of events to that of Mr Buckley and continued to justify his actions and blame them on the victim. Whilst he was assessed as presenting a low risk of reoffending, the report did maintain that Hai Peng Li had anger management issues. These were however reported to have resolved in 2017. It was reported that he regretted his actions and accepted the effects they had.

Hua Feng Ji


The second-named respondent, Hua Feng Ji, was 39 years old at the time of sentencing. He is a native of China, where his parents and brother still reside. He has a degree in accountancy and is married with two children. He moved to Ireland in 2001, whereupon he attained work in a café, which he eventually bought with his earnings. He bought his interest in the Spar shop after selling that café in 2013.


It was submitted that the Spar was based in area of Dublin which has faced many difficulties, and the shop had suffered from instances of theft and robbery before, which led to an uncharacteristic and disproportionate reaction.


His probation report states that he has some insight into the impact of his actions, that he was remorseful and had learned from the incident but continued to justify his actions and still blamed it on the victim. The Probation Officer assessed the Feng Ji as presenting a low risk of reoffending and concluded that supervision would be of limited benefit.

Remarks of the Sentencing Judge

When sentencing the two respondents, the sentencing judge summarised the facts of the case, and interpreted that the two men had got the wrong end of the stick and misread the situation and engaged in a serious scuffle which was clearly the wrong way to deal with the matter. The sentencing judge characterised their actions as a “ a gross exaggerated response”, noting their unfortunate history of being subjected to robbery and theft, but stressed that a less aggressive approach should have been taken. It was acknowledged that the respondents' insurers had paid compensation to the injured party, and the sentencing judge stated that he had no doubt that the insurance company has visited, I suppose, a cost on these two defendants in relation to their insurance coverage.


The sentencing judge assessed the mitigating and aggravating factors before arriving at the sentence:

“Now, the mitigation is clear, they have pleaded guilty, they have expressed remorse, which I think it sincere remorse. Importantly, neither had a previous conviction prior to this date and neither has offended in any way since the date. The question is what to do about it? It was a serious assault with reasonably serious consequences for a victim. But on the basis of all of the evidence and submission made in the case, I think it will be unjust to imprison these two men. I think the appropriate sentence for both of them is a term of imprisonment of two years and that is to be suspended on the following basis. One, they must be of good behaviour for a period of two years and, secondly, they must enter into a bond in the sum of €100.”

Grounds of Appeal

The appellant rests her appeal on the following grounds:

i) The sentencing judge did not identify a headline sentence;

ii) The sentencing judge attributed too little weight to the aggravating factor;

iii) The sentencing judge attributed too much weight to the mitigating factors.

Submissions of the appellant

Headline Sentence & Aggravating Factors


The sentencing judge did not identify a headline sentence. Such an approach has been recommended as best practice by this court in numerous cases. In DPP v Molloy [2018] IECA 37 the approach was favoured on the basis that:

“20. … it seems to us that it is likely to best...

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