HKSAR v. YU KAM HUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 1055/97

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J U D G M E N T

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1. This Appellant appeals against a sentence of 9 months imprisonment which was imposed on him for an offence of Wounding under Section 19 of the Offences Against the Person Ordinance, Cap. 212.

2. The admitted facts show that the victim, who was 67, was assaulted in an apparently unprovoked attack by this Appellant who was a bystander watching the victim playing a game of cards. The victim was pressed to the ground and the Appellant picked up a stone and threw it at the victim's head. He picked up another stone and hit it on the victim's head and face. The victim had two 3 cm lacerations on his skull which required 19 stitches. He lost one real tooth and 4 false teeth. He had a swollen and bleeding face and spent 4 days in intensive care.

3. Various factors were put before the court in mitigation. The Appellant claimed in mitigation through his counsel that he was drunk, but said that the victim was drunk too and that the victim had in fact provoked the attack. Various personal matters pertaining to the Appellant were put before the Magistrate. The only major mitigation appeared to be the plea of guilty which had been advanced.

4. This Appellant has an extremely bad record with a large number of convictions. He has some 23 convictions of which eight relate to violence. In 1971 there was a Wounding section 19; in 1972 a Common Assault, another Wounding 19 in 1977. In 1978, 1979 and 1988, there were separate offences of Assault Occasioning Actual Bodily Harm. In 1988, there was an assault on a police officer. In 1982, there was an obstruction of a police officer under the Offences against the Person Ordinance and in 1994 this Appellant served a 4-year sentence for Manslaughter. It was a few months after his release from prison that this offence was committed.

5. The Magistrate considered all the factors advanced by the Appellant's counsel in mitigation. He ignored the record except to comment that it showed Appellant had a tendency to violence, which was understating the case considerably. He imposed a sentence of 12 months' imprisonment which was not a day too long in view of the nature of the attack. However, the Magistrate later entertained an application for a review of sentence by another counsel. On counsel's submission alone and, as far as can be seen from the transcript, without calling any evidence or asking the prosecutor for any confirmation, the court decided that the sentence of 12 months was too long and reduced it to 9 months' imprisonment.

6. It is somewhat surprising in view of the brief facts that had been admitted by this Appellant (and confirmed to his counsel as Appellant told me today) that the Magistrate without further ado allowed the review on that basis. Nevertheless, I accept that he chose to reduce the sentence as a result of that review and I do not propose to increase the sentence back to what I consider should have been the proper 12 months. However, I order that a further 6 weeks be served in addition to that sentence. I considered making the sentence run from today, but I think that would make it too high. This entirely unmeritorious appeal is dismissed.