HKSAR v. SUEN PAN HOI

HCMA927/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.927 OF 2000

(ON APPEAL FROM WSCC 8642 OF 2000)

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J U D G M E N T

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1. The appellant pleaded guilty to the offence of Assault Occasioning Actual Bodily Harm. The sentence imposed was eight months' imprisonment, to be served consecutively with the existing sentence. The appellant sought to appeal against this sentence.

2. The background facts of the case were that on the material date, the appellant, an inmate of Stanley prison, had an argument with some of the other inmates over gambling debts. In the heat, one of the inmates was struck and fell. He became unconscious. At one stage, the appellant approached and kicked the inmate's head area. The inmate suffered injuries as follows : multiple mild swelling over eyebrow regions, right jaw and a tooth loosed off, redness over both ears, right scapular region and right forearm. The appellant later admitted that he had kicked the inmate because he owed him cigarettes.

3. The learned magistrate heard mitigation that the appellant was already serving a sentence of five years and three months, he had aged parents in China and that the offence was committed in the spur of the moment.

4. In his Reason for Sentence, the magistrate stated that : "this was a serious assault on a fellow inmate. I considered the totality principle. After trial, I would have considered 12 months' imprisonment to be appropriate." The magistrate had apparently adopted the 12 months as the starting point. Having granted the one-third discount for the plea, the term imposed was eight months. However, he ordered a consecutive term to the existing sentence.

5. The appellant argued that the starting point of 12 months was too high and, alternatively, the issue of totality had not been properly dealt with by the learned magistrate. Counsel for the appellant referred to the fact that the learned magistrate had unjustifiably took the view that it was a vicious attack. He said that from the injuries, perhaps it could not be so described. I disagreed with this submission. To kick a person on the head while he is on the ground must be a vicious attack. Considering the fact that the attack was carried out inside prison, where discipline should be observed, I found that 12 months was a proper starting point.

6. As I see it, the only issue was whether the term of eight months ought to be made consecutive to the existing term of five years and three months. Of the authorities cited, I accepted that the judgment by Power VP (as he then was) in AG v Au Kwok Chai, Application for Review 1995 No.22 was directly relevant here. This case involved an inmate being found in possession of some heroin. The trial magistrate sentenced the appellant to one month imprisonment, but ordered it to run concurrently to the existing sentence of 5 1/2 years. In allowing the review application, Power JA stated how the sentence should be considered :

"As we have already indicated, the court must first determine the sentence appropriate to the offence being dealt with. We bear in mind, as did the magistrate, that this was a very small amount of narcotics and was, it is accepted, for use by the respondent himself.

Having done so we are satisfied that the proper sentence would have been one of 12 months.

We now turn to look at totality. We are satisfied that we should order that six months of that sentence be concurrent with the sentence of 5 1/2 years imposed. This will mean that the respondent will serve an overall period of imprisonment for six years."

7. Considering the totality of the two terms in the present case, I believed the same approach should have been adopted here. Therefore, half of the eight months imposed should be served consecutively to the existing term and the balance to be served concurrently.

8. I would hence allow the appeal to this extent. The total imprisonment term would therefore be five years seven months (five years three months plus four months).