THE QUEEN v. CHAU TAK WAI

IN THE HIGH COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 222 OF 1988.

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J U D G M E N T

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1. The appellant was charged with assault occasioning actual bodily harm and was sentenced to 6 months' imprisonment.

2. The appellant worked in an electrical appliance shop, the Kin On Electrical Company in Shumshuipo.   

3. A customer came in to buy an electric heater. He was shown one and agreed to buy it for $530. He paid that money to the appellant who wrote out a receipt and told the customer he had to wait ten minutes. After ten minutes the appellant told the customer that the heater he had bought had a great many disadvantages and that there was no guarantee with it - he asked the customer to sign an acknowledgment that there would be no guarantee. The customer, fearing that he was being cheated, snatched the receipt for the money he had paid to the appellant. The magistrate found the customer feared he was being cheated and I have no doubt that was a correct finding. The appellant with two other persons then pushed the customer to the ground and the customer was punched on his head and body and had his shirt badly ripped. He shouted for help. A Mr Tee entered the shop and saw the customer being held down by two men - the customer was trying to get up but he was prevented from doing so. Mr. Tse thought the customer was having an epileptic fit until he noticed the customer's shirt was badly torn and heard him shouting for help. The appellant then offered to return the customer's money if he returned the receipt. The customer refused and rushed out of the shop. When the customer returned with a police officer the appellant was not to be seen but later, again with a police officer, the customer went to the shop and identified the appellant as one of his attackers.

4. The learned magistrate took a serious view of the matter, in my view quite rightly. He was of the opinion that the only way to deal with persons who dealt with customers as the appellant had done was to make it clear that the courts would deal severely with such cases. He sentenced the appellant to 6 months imprisonment.

5. The appellant was 19 at the time of the offence, had a clear record and he pleaded guilty. He had an unfavourable academic record - he left school after completing Form 2. He has worked for electrical companies in Mongkok, Tokwawan and Shumshuipo. He had worked for the Kin On Electrical Company for 1½ years. Although only 19 he earned about $12,000 a month. His employer described him, among other things, as "an aggressive salesman" - that might have been intended to be a compliment.

6. Having considered the Probation Officer's report and the Detention/Training Centre Suitability reports I agree with the learned magistrate that the proper sentence should be an immediate custodial sentence. However, having regard to the appellant's age, his plea of guilty and the fact he is a first offender, I think the proper sentence is a Detention Centre Order. To that extent the appeal against sentence is upheld and the sentence set aside and I substitute therefore a Detention Centre Order.