THE QUEEN v. CHAN KAM FUK AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 463 of 1984

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BETWEEN

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JUDGMENT

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1. This is an appeal against sentence of 2 years imprisonment for assault occasioning actual bodily harm. It was agreed that the appellants in a group of 5 members assaulted the victim in the early hours in the morning in the Olympia Theatre Building in King's Road. The reason for this assault does not seem to have come out. When arrested the 1st appellant said nothing. The 2nd appellant said that he saw his friend, who was not the first appellant assault the victim and he also took part. He did not know his friend's name or whereabouts. He did not know why the assault took place. That is difficult to believe. There had been a previous assault the same evening on another person which resulted in both appellants being charged with common assault and I conclude that that was not particularly serious assault. Nevertheless these were both assaults in the early hours in the morning by a group of people on persons they apparently did not know. As far as the injury is concerned, it seems to me to be a serious case of assault causing actual bodily harm. There was no permanent disability but fists were used and the victim was kicked. It was clearly a serious unprovoked assault.

2. The Magistrate has quite rightly regarded the maximum sentence laid down by the legislature for the offence, three years imprisonment, as being the yardstick to look at, not the sentence that he was entitled to impose sitting as a Magistrate. The appellants are entitled to a discount on that because they had no previous convictions at the time. There had been a previous assault the same night, but at the time of the second one, they had no previous convictions. They are also entitled to a discount because they pleaded guilty, albeit in the face of strong evidence and I accept they have genuine regret. No weapon was carried or used. On that basis I think a proper sentence would be one of 18 months imprisonment. However, I do think that it should be consecutive to the one imposed for the previous assault.

3. The Magistrate has referred to some English decisions set out in Thomas. One was where there was an assault on a traffic warden. In another case where a young man was deliberately lured out of the public house and was then assaulted. One where there was a serious assault on a fellow bus passenger. There the sentence of three years on a youth of 13 does seem to be extremely severe. While it is helpful to look at other cases as regards sentence I think each case must stand on its own facts which usually vary greatly.

4. I will therefore allow this appeal to the extent that the sentence be reduced to one of 18 months imprisonment, but it will consecutive to the sentence of two months imprisonment imposed for the charge of common assault, giving a total of 20 months.