RAYMOND YAN KAI YIP v. HKSAR

HCMA 95/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 95 OF 2005

(ON APPEAL FROM ESCC 2758 OF 2004)

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J U D G M E N T

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1.  Having dismissed the Appellant’s appeal against conviction in this matter I heard Mr. Harris on sentence after which I allowed the appeal by substituting a conditional discharge for 12 months (with a requirement that the appellant enter into a recognisance to be a good behaviour in the sum of HK$1,000 dollars).  I indicated that I would give reasons later which I now do.

2.  Having convicted the appellant, the Magistrate, Mr Eddie Yip Chor-man, then remanded him in custody for 21 days for a background report.  He said at the time that he considered that a prison sentence was inevitable.  On his re-appearance the Magistrate imposed a 21 day prison sentence which enabled the Appellant to be immediately released.  At the time of the remand in custody it had been submitted on behalf of the Appellant of this was a case for a fine, which the Appellant was well able to pay as he earned between HK$40,000 and $50,000 a month.

3.  Mr Harris has made strong complaint about the sentence on a number of grounds.  Firstly, he submits that a prison sentence should never have been imposed nor contemplated.  That being so the remand in custody is to be strongly deprecated because, he submits, that this amounts to a misuse and indeed an abuse of the remand to produce a result whereby the Appellant was given a three week taste of custody only to be immediately released by virtue of a short term of imprisonment which he had served whilst on remand for a background report.  That Report was never going to make the Magistrate any the wiser about the Appellant, because the Magistrate already knew much about him having regard to the evidence that he had given about his good character, his employment and police commendations.  In any event the Appellant was represented by an experienced solicitor who was well able to fill in any gaps about his personal circumstances.

4.  In order to decide whether this submission has any substance it is necessary to start with an examination of whether a custodial sentence, no matter how short, was on the cards.  If it was not, then I would have thought that there could be no possible justification for a remand in custody in order to obtain a background report which could have been obtained by remanding the Appellant on bail.

5.  Most of these offences of criminal intimidation have a triad linked flavour about them, be they actual triad cases or committed by persons claiming to have a triad background or connection.  In such cases a custodial sentence would be very much in the contemplation of the court and a remand in custody for reports, if that is the course that the court wishes to adopt, would be perfectly correct.

6.  This, in my judgment, is not one of those cases.  It concerns a man of perfectly good character, a hitherto entirely respectable and law abiding individual who was, by virtue of being something of a busybody, in the habit of complaining about the standard of work of the security and management staff at the building where he lived.  On this occasion he had gone impermissibly far by bringing a Pakistani man to the complainant (PW3) and indicating that this man would beat up PW3, a member of the building management staff and about whose standard of work the Appellant had in the past expressed himself dissatisfied with.  One can immediately realize that this threat and the form that it took would alarm any person of reasonably firm disposition.  I have already held that the Magistrate was amply justified in convicting the Appellant for this offence.

7.  Against this, the Appellant, as I have already indicated, was of positively good character who had received police commendations but who, by virtue of some defect in his personality, was prepared to be something of a nuisance by habitually complaining about the security staff when a more reasonable person would have been prepared to put up with any shortcomings by the staff.

8.  In my judgment, having regard the facts of this case, an immediate custodial sentence was never going to be on for a person of the Appellant’s standing in terms of his character and background.  This was not a case calling for such a sentence.  This being my view, a prison sentence was wrong in principle.  The Magistrate should have first addressed himself to the full range of other sentencing options before arriving at the conclusion that immediate custody was what was called for.

9.  In my judgment this matter called for either a substantial fine to show the court’s disapproval; a fine that reflected the anxiety caused by the Appellant’s conduct and having regard to his means which were ample or, alternatively, perhaps a Community Service Order.  That order would have required reports which could have been obtained by a remand on bail.  This was not a case where it was being suggested that the Appellant was going to abscond before sentence.

10.  In these present circumstances, now that the Appellant has already served his prison sentence, I do not consider either of those options would be correct.  Such a course would add insult to injury.  Consequently, in these circumstances, I have decided to impose the lesser sentence of a conditional discharge which the Appellant has consented to through his counsel.  A conditional discharge would have been too lenient a sentence to impose immediately following his conviction but it is now right given what has happened to the Appellant who, in my judgment, should not have been sent to prison.

11.  This then brings me to the question of the remand in custody.  Was it wrong for the Magistrate to have adopted that course only to let the Appellant out at the end of it?  I have read the transcript of the exchanges between the Appellant’s solicitor and the Magistrate after the report had been obtained.  The Magistrate immediately indicated that he was going to let the Appellant out by imposing a 21 day (the length of the remand in custody) sentence.

12.  It seems to me that Mr Harris could not have complained in the way that he has, had the 21 day sentence been imposed immediately after the conviction because inevitably, the Appellant would have been bailed pending his appeal having regard to the shortness of the sentence.  Whilst it is possible to get bail from the High Court following a remand in custody for reports, experience shows it is more difficult to achieve because the High Court will be less ready to interfere where the sentencing process is not yet complete, save in the clearest of cases.

13.  In this matter I am not prepared to criticize the Magistrate by saying that he has misused the process of remand.  Nevertheless, I would wish to observe that a remand in custody should not be made before sentence unless it is very much on the cards that some form of custodial sentence is to be imposed, particularly in the case of someone of good character.  If a remand in custody is ordered in cases where a custodial sentence is not likely then this may give the impression that the court is wanting to punish a defendant on an ‘interlocutory’ basis without ever having the intention of ultimately imposing a custodial sentence.

14.  I appreciate that in some classes of case certain reports can only be obtained by a remand in custody, such as for a DATC Suitability Report or, for younger offenders, when the court would wish to call for Detention Centre or Training Centre Suitability Reports.  In most of these cases the calling of such reports will be amply justified by the facts of the case and by the defendant’s age, character and antecedents.

15.  These observations are intended to relate to the category of case where a custodial outcome is unlikely.  If a report is called for then that should usually be on bail.  When the report is received and based on its contents the court decides that a more severe sentence is appropriate then such a sentence can be imposed on the return day for the report or, further reports may need to be obtained, which based on the change in circumstances disclosed by the first report following the remand on bail, such reports can properly be called for by remanding the defendant in custody.