R. v. YUEN KWAI WAH

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1417 of 1996

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J U D G M E N T

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1. The appellant was convicted by his own plea of criminal damage. The charge alleged that he damaged a wooden door belonging to Tam Sze On on 30th July 1996 at 1/F 8, Kwun Hang Village, Sai Kung.

2. The facts as found by the magistrate after a Newton hearing conducted because the parties disputed them were these :

3. Tam Sze On engaged the appellant to decorate his flat. When the work was completed, Tam gave the appellant two cheques one for $22,420 and the other for $8,000. The $8,000 cheque was post dated and given on the understanding that if any unsatisfactory work was found, Tam could stop payment of the cheque. The appellant agreed to this arrangement. Subsequently Tam countermanded the cheque of $8,000. On 30th July 1996 at 1:30 a.m., the appellant went to the premises with another man. They were not admitted by the maid because Tam was not there. The Appellant and the other man damaged the entrance door to gain entry into the premises. After failing to find Tam, they left. The damage to the door was estimated to be $3,000. Tam stopped the cheque because he found the work was unsatisfactory.

4. The appellant had a record of gambling conviction and on 21st August 1995 was convicted of assault occasioning actual bodily harm and was sentenced to three months' imprisonment suspended for 12 months. The magistrate considered the circumstances of the last case and the probation and community service order reports and submissions on the appellant's background based on those reports were made before the magistrate by the appellant's legal representative.

5. The magistrate adopted from the conclusion of the reports that the appellant was a man of little education and little knowledge of business procedure of resolving disputes. It was submitted that the appellant was drunk when this offence was committed. He was on comprehensive social assistance at the time.

6. The magistrate in his reasons for sentence stated that drunkenness was no excuse for the appellant's behaviour and what the appellant did had caused shock and fear. He was aware of the appellant's personal circumstances but he considered that the appellant could only be dealt with by the imposition of a custodial sentence. He adopted a starting point of six months but having regard to his plea of guilty, he reduced it to five months imprisonment. The magistrate added :

"Had there been no dispute as to the facts or had I found in his favour, I would have sentenced the appellant to a period of imprisonment of four months."

He also ordered the suspended sentence to be activated so that the sentence the appellant was ordered to serve was a period of 8 months.

7. Mr Wilson Chan for the appellant submitted that on the totality principle the total of eight months was manifestly excessive. He referred to R. v. Bocskei (1970) 54 Cr. App. 519 which as a general principle held that it was the duty of the sentencer to make sure that the totality of the consecutive sentences is not excessive and that applies to activation of suspended sentences.

8. I do not think the total of eight months was excessive in any way. The appellant was given a chance when he used violence against his partner during a business dispute. He again resorted to violence when he faced a business dispute and this time, more force was used, breaking down of the entrance door of the premises to force entry into the premises together with another man. This must have caused shock and fear to the maid inside at the time. Fortunately Tam was not inside the premises. It appeared that the appellant did not regard the suspended sentence as any form of punishment for his act of violence and he thought he could at any time use violence to achieve his aim.

9. Mr Chan referred to R. v. Sargeant (1974) 60 Cr.App.R.74 where the Court of Appeal considered the elements of retribution, deterrence and rehabilitation in principles of sentencing and stated :

"There are two aspects of deterrence: deterrence of the offender and deterrence of likely offenders. Experience has shown over the years that deterrence of the offender is not a very useful approach, because those who have their wits about them usually find the closing of prison gates an experience which they do not want again. If they do not learn that lesson, there is likely to be a high degree of recidivism anyway. ....."

On rehabilitation the Court of Appeal stated :

"Some 20 to 25 years ago there was a view abroad, held by many people in executive authority, that short sentences were of little value, because there was not enough time to give in prison the benefit of training. That view is no longer held as firmly as it was. This young man does not want prison training. It is not going to do him any good. It is his memory of the clanging of prison gates which is likely to keep him from crime in the future."

10. Mr Chan submitted that a short sentence having the effect of the clanging of the prison doors would be sufficient in this case.

11. The sentence of eight months is not unduly long and that would be sufficient for the appellant to remind himself that he should not resort to violence in order to have his way.

12. The appellant's family situation were put before the magistrate. The children are now looked after by his friends. His wife had left him. These are matters which the magistrate had considered when he concluded on five months imprisonment. The sentencing imposed were neither wrong in principle nor manifestly excessive.

13. The appeal against sentence is dismissed.