HKSAR v. KARAMJIT, SINGH

HCMA 1129/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1129 OF 2002

(ON APPEAL FROM NKCC 5597/2002)

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J U D G M E N T

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1. You have been convicted after trial of a single charge of common assault as a consequence of which you have been committed to Detention Centre. You appeal the sentence.

2. You originally filed a notice of your intention to appeal against both conviction and sentence. You have today confirmed that you abandon the appeal against conviction. That disposes of that aspect of the matter but one other matter deserves comment. You were unrepresented. At the end of the trial before the Magistrate invited you to make submissions and before the Magistrate decided the case the court prosecutor quite properly informed the Magistrate that you had a clear record. This is a matter which is frequently overlooked in trials involving unrepresented accused when, in reality, it is a practice to be commended.

3. Your co-accused stole a bottle of whisky worth some $65.00 from a shop. As you two, plus a third person who was not charged, left the shop the alarm sounded. An employee intercepted you. You moved between your co-accused and the shopkeeper and gestured to the other two to go away. The shopkeeper tried to move past you to stop your companions. In the Magistrate's own words :

"The appellant pushed with his right hand on the chest of PW1 once, causing PW1 to step backward. That became the subject of the charge of common assault against the appellant."

And for that you were committed to Detention Centre.

4. The Magistrate was entitled to take into account all of the surrounding circumstances including the fact that the push was designed to enable your companions to make off. He plainly sentenced you for the offence of common assault, not for the theft. But even so that could not justify the sentence you received. He was quite wrong in the emphasis he placed on this aspect of the matter, particularly bearing in mind that you were a first offender.

5. This is a matter which properly should have been dealt with by way of a non-custodial sentence of some form.

6. The appeal against sentence is allowed and the sentence quashed. I considered calling for further reports on you. I have decided not to do so in the belief that your taste of incarceration over the last several weeks is more than adequate penalty for your offence. The fact that you have spent time in custody does not justify the imposition of a custodial sentence now which would not have been appropriate as the original sentence.

7. You are absolutely discharged.