HKSAR v. KWOK MAN HUNG AND ANOTHER

HCMA292/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 292 OF 1998

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J U D G M E N T

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1. The Appellants Mr Kwok and his wife Madam Chui were jointly charged and pleaded guilty to one count each of Assault Occasioning Actual Bodily Harm and Common Assault. The 1st Appellant was sentenced to two months' imprisonment on the first count and two weeks' imprisonment on the second count. The 2nd Appellant was sentenced to terms of one month on the first count and one week on the second count. The sentences of each Appellant were ordered by the learned Magistrate to run concurrently.

2. The incident giving rise to the present charges occurred in the night of 22 October 1997 in a shopping arcade in Yaumatei where the Appellants operated a fashioned boutique. The victim of the 1st charge, one Mr Mui, is the boy-friend of Miss Siu, the victim of the 2nd charge. Miss Siu was formerly an employee of the Appellants and earlier in the month she ceased working for them. When Miss Siu left, the 2nd Appellant issued and signed a cheque payable to Miss Siu in settlement of her wages. The cheque was, however, not honoured when first presented but the amount was eventually settled after negotiations with the Appellants.

3. On the night in question the victims were strolling in the vicinity of the Appellants' shop when they were intercepted by the 2nd Appellant who accused the victims of having made unfounded allegations of dishonesty against their fashion business. The 1st Appellant joined in very shortly afterwards and used abusive language against the victims. The verbal exchanges quickly degenerated into violence when the 1st Appellant started pushing Mr Mui who sought assistance from the passers-by to make a report to the police. At this point the 1st Appellant was heard to summon assistance through his mobile phone. Very soon thereafter five to six males came upon the victims and at the direction of the 1st Appellant, started punching and kicking the couple. The assailants fled after the assault. The 1st Appellant threatened the victims by words to the effect that it was not the end of the matter and that he would ensure the victim would lose his job with the Correctional Services Department.

4. The couple were later taken to the Kwong Wah Hospital for treatment. The boy-friend was found to suffer from multiple abrasions on his body, bruising and swelling on his left face. Miss Siu's injuries was described as 'left leg contusion'. Both Appellants were arrested by the police a week after the incident.

5. The Appellants were tried in the South Kowloon Magistracy and it was only after hearing the evidence of Mr Mui, the victim of the first charge, that the Appellants changed their pleas to one of guilty.

6. At the commencement of this appeal Mr Mullick for the Appellants sought leave from the court to adduce fresh evidence, by way of an affirmation made by the 1st Appellant, in support of the appeal. The application was not opposed by the Respondent. In the affirmation the 1st Appellant deposed to the fact that if he were to be jailed for any period of time, their fashion business would suffer hardship to the extent that they will have to cease operation altogether.

7. The only ground in this appeal is that the respective sentences imposed by the learned Magistrate were manifestly excessive and wrong in principle .

8. The 1st Appellant is 33 years of age and has six previous records with nothing similar to the present offences. I note there was one previous conviction of robbery for which he received a term of eight years' imprisonment in 1983. The 2nd Appellant is 31 and has a clear record.

9. The facts of this case as agreed by the Appellants show that it was the 1st Appellant who summoned the group of males to come and attack the victims. It shows that the 1st Appellant has the ability and resources to enlist individuals who were always in a state of readiness to execute his orders regardless of the legal consequences. When those males arrived they were directed by the 1st Appellant to attack the victims. These offences cannot be described as ones which were committed in the heat of the moment. The 1st Appellant had chosen to take the law into his own hands by ordering an attack on the victims and this, in addition to the threats he uttered, must be aggravating features in this case. If any criticism can be levelled at the learned Magistrate at all, it would only be that she had adopted an unduly lenient starting point and that she had given a full one-third discount on the guilty plea even though it only came after the male victim had given evidence. These are very serious offences and it was fortunate that the victims only suffered relatively minor injuries. I find no merit in the 1st Appellant's appeal against sentence and it must be dismissed.

10. The 2nd Appellant's case can be looked at in a more favourable light. I accept Mr Mullick's submission that she was not the person who summoned the males to the scene and she could not have foresaw what her husband did during the confusion. It was urged upon this court that she should not have been held responsible for the acts of her husband. In adopting the same starting points for the 2nd Appellant as that of her husband, the learned Magistrate, it was said, had failed to take into consideration these very cogent mitigating factors. I do not think the learned Magistrate erred in anyway in principle in imposing a custodial sentence as the circumstances of the case clearly justifies a term of imprisonment. I am also mindful that if both Appellants were to serve an immediate custodial term, their business would have every chance to fail due to lack of supervision. In view of the less culpable part played by the 2nd Appellant in the incident and the unlikelihood of her committing further offences, I would order that the sentences be suspended.

11. The appeal by the 1st Appellant against sentence is dismissed.

12. The appeal by the 2nd Appellant is allowed to the extent that the immediate custodial terms are suspended for a period of 12 months.