HKSAR v. WAN YICK TAK

HCMA 189/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 189 OF 2013

(ON APPEAL FROM ESCC 491 of 2013)

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J U D G M E N T

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1. The appellant pleaded guilty to one count of Common Assault, contrary to common law and section 40 of the Offences Against the Person Ordinance, Cap 212. He was sentenced by the magistrate to 2 months’ imprisonment which was to run consecutively to the 4 years’ imprisonment he was serving for a conviction of Robbery. He appeals against his sentence on the general ground that his sentence was too severe.

Facts

2. The appellant and the co-defendant were both inmates of Stanley Prison.  On 24 October 2012 a dispute suddenly arose over an alleged “staring” incident and a fight ensued.  Both men were subdued, separated by Correctional Service Department Officers and were sent to hospital. 

3. The appellant sustained injuries from the assault:

(1) subconjunctival haemorrhage of the lateral aspect of his right eyeball.  Mild soft tissue swelling and tenderness at the right zygomatic region; and

(2) a 3.5 cm long superficial scratch on his left face.

4. The 2^nd defendant sustained milder injuries:

(1) 3 x 1.5 cm of mild erythema on left lower neck;

(2) 8 x 10 cm redness on right anterior chest wall; and

(3) 4 cm superficial scratch mark over medial aspect of right knee region.

5. The appellant claimed that the 2^nd defendant scolded him over staring matters and stood up to punch his head; this started the dispute.  It was generally conceded that the initial blow had been delivered by the 2^nd defendant.  The appellant retaliated by punching the 2^nd defendant twice.  The 2^nd defendant claimed that he had punched the appellant out of momentary anger and the appellant fought back.  Subsequently the appellant was charged with Common Assault, and the 2^nd defendant was charged with Assault Occasioning Actual Bodily Harm.  The 2^nd defendant pleaded guilty before the same magistrate and was sentenced to the same term of 2 months’ imprisonment to run consecutively to the 4 years and 4 months’ imprisonment the 2^nd defendant was serving for a conviction of Trafficking in Dangerous Drugs. 

6. The appellant in mitigation before the magistrate said that he was due to be released in October 2013; he acted out of impulse and he was very remorseful. 

7. The magistrate took a serious view of the offences because the two defendants were in prison.  She pointed out, correctly, that “An assault by one inmate on another in the confines of a prison must be viewed seriously and a deterrent sentence is necessary to help ensure that proper discipline is maintained in the prison” [AB14 para 6].  In her view, a custodial sentence was inevitable. 

8. The magistrate thought that there was little mitigation.  She bore in mind that the appellant was currently serving a term of imprisonment and was due to be discharged in October 2013.  She noted that no weapons were used; that it was the 2^nd defendant who hit the appellant first; and that the injuries sustained by the appellant were more serious. 

9. She took a starting point of 3 months’ imprisonment, reduced it by one-third to reflect his plea and sentenced him to 2 months’ imprisonment.  She found it was a separate and distinct offence and having regard to the totality principle she ordered the sentence to run consecutively to the sentence he was serving.

10. The magistrate was correct in commenting that prisoners need to be deterred from attacking each other.  She noted that there are no tariffs or guidelines for the offences of Common Assault or for Assault Occasioning Actual Bodily Harm.  The sentence of 2 months’ imprisonment is not manifestly excessive in view of the aggravating feature of assault by one inmate on another.

11. Counsel for the respondent Mr David Yim submitted that the magistrate was entitled to take a “holistic” view of the case and considered that both the appellant and the 2^nd defendant were equally culpable in contributing to the possible breakdown of order in prison.  He submitted therefore that there was no real disparity in sentence between the appellant and the 2^nd defendant, as the appellant complained. 

12. Alternatively, the respondent submitted that the issue of disparity arises in that the sentencing of the 2^nd defendant might be regarded as too light given that the appellant sustained more serious injuries in the attack.  However a disparity in sentencing should not automatically lead to a reduction in sentence (see R v Stroud [1977] 65 Cr App R 150).

13. The appellant complains of unfairness because he believes he should have received a lesser sentence since he faced a lesser charge.  Although he received more serious injuries and had not done more than retaliate, he nevertheless was required to serve the same sentence as the instigator of the attack. 

14. The magistrate was correct to be concerned that prisoners should be deterred from offences of violence because such incidents, if not treated seriously and addressed promptly, could lead to a breakdown in prison discipline and morale.  However, it is also the case that prison discipline and morale can be damaged where a prisoner dealt with for a disciplinary offence or a criminal offence has been, or believes he has been treated unfairly, or else perceives that according to the usual norms of conduct there should be a distinction in the punishments meted out to perpetrators.  In the artificial conditions of prison life to ignore such considerations can lead to continuing and/or future trouble amongst the inmates.

15. Here the appellant, who was aged 36 years was set on by a younger man (21 years) and although he admitted retaliating, he inflicted very minor injuries on the 2^nd defendant, amounting to little more than red marks, while he himself sustained painful injuries in the eye area.

16. The different charges laid against the appellant and the 2^nd defendant show that the police recognised the differences between the two perpetrators (as indeed did the CSD officers who witnessed the incident.)

17. Thus although the magistrate’s sentence may not have been excessive or wrong in principle when looked at in the context of similar cases, it fell to be looked at vis-a-vis the charge against the 2^nd defendant.  It would have been sensible to give some thought to the likely unhappy result of imposing identical sentences – instead of marking, however slightly, the differences between the two offences.  To pass identical sentences given the different charges is to instil in the appellant a lingering and justifiable grievance and resentment.

18. Accordingly I adjust the sentence imposed on the appellant by ordering that one month of the sentence imposed on him is to be served concurrently with any other sentences he is now serving.  To that extent this appeal against sentence is allowed.