HKSAR v. FUNG SHUK YIN

HCMA365/2007

IN THE HIGH COURT OF THE

 HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

 (Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 365 OF 2007

(ON APPEAL FROM ESCC 621 OF 2007)

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J U D G M E N T

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1. This is an appeal by the appellant against the sentence of 8 months’ imprisonment imposed upon her by Mr Thomas at Eastern Magistrates’ Court, following her plea of guilty to one charge of assault occasioning actual bodily harm, contrary to section 39 of the Offences Against the Person Ordinance, Cap. 212.

2. The facts that the appellant admitted were as follows.  On 7 January 2007, Woman Correctional Services Department (“CSD”) officer, Lau Ka Wai, was on duty at Hei Ling Chau Addiction Centre.  At about 8:30 a.m. she was responsible for waking the occupants of a dormitory so that they might go to breakfast.  The appellant was in that dormitory on recall.  At about 8:40 a.m. the officer woke the appellant.  The appellant shouted at the officer using foul language, and then pushed the officer to the floor.  The appellant picked up a plastic chair and hit the officer with it on her head and hands.  Other officers arrived and subdued the appellant.

3. The officer was taken to hospital where she was found to have sustained an abrasion to her scalp and bruising on her left upper arm.

4. The appellant was aged 31 and single.  She has a number of previous convictions including three for offences of violence.

5. In the Magistrates’ Court, she was represented by a lawyer instructed by the Duty Lawyer Service.  She herself told the court that she was out of control emotionally.  Her lawyer told the court that she committed the offence because the day before her boyfriend had told her that he wished to bring their relationship to an end.  Counsel also told the court that she was suffering from a neurological problem and wished to see a doctor.  He also said that the appellant’s younger sister suffered from mental problems and that the appellant wished to take care of her.

6. The court had before it two psychiatric reports dated 21 February 2007 and two reports dated 5 March 2007.  The reports indicated that the appellant was suffering from the effects of long-term polysubstance abuse.  She showed symptoms of dissocial personality disorder.  She was however not showing any psychiatric symptoms.  Inpatient psychiatric treatments were not recommended but it was recommended that she had psychiatric follow-up in an outpatient clinic. 

7. The magistrate took all these matters into account.  He rightly took the view that this was a serious offence.  He said this :

“… The Comissioner of Correctional Services, acting through his officers has an obligation to maintain order and discipline in a correctional institution.  This is particularly so in women’s institutions where, in recent times, overcrowding has occurred.  The courts have an obligation to support the Commissioner in his statutory duties.”

8. The magistrate adopted a starting point of 12 months’ imprisonment which he discounted by one third to reflect the appellant’s plea.  He said that he adopted a starting point of 12 months’ imprisonment to mark the seriousness of the offence despite the minor nature of the injuries that were caused and to mark the previous offending of the appellant.

9. I am satisfied that the sentence of the magistrate was severe but not manifestly excessive, given the circumstances of the offence and the readiness of the appellant to resort to violence.  

10. This is her fourth conviction of an offence of violence.  In 1992, she was convicted of wounding with intent to cause grievous bodily harm.  In 1995, she was convicted of assault occasioning actual bodily harm.  Her last conviction, only four months before this incident, was assaulting a police officer for which she was sentenced to 80 days’ imprisonment.  Indeed it appears that it was that offence that caused her recall to the DATC. 

11. CSD officers are obliged to work in close proximity to detainees.  That they should feel able to do so in safety benefits everybody, particularly the detainees.

12. The courts have an obligation to make it clear that violence towards the staff of CSD will not be tolerated.  The appellant has not up to now been deterred from offences of violence.  She must expect a sentence designed to deter her from repeating such offences.

13. I dismiss the appeal.