HKSAR v. LAI SIU FAI and Another

HCMA 73/98

HEADNOTE

Where a legally represented defendant asks a sentencing court to deal with him by way of a fine, then he has an obligation just as he would have if the court itself had indicated that it was contemplating a fine to place before the court information relevant to his financial position. If he does nothing in that regard, it is proper for the court to proceed on the basis that he is able to pay any reasonable fine. Of course if the fine imposed is an excessive one, then such excessiveness would of itself constitute a ground of appeal against the fine.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 73 OF 1998

(On appeal from ESC 4699 of 1997)

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J U D G M E N T

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1. There are two Appellants before me. The 1st Appellant is a man in his early 20s, while the 2nd Appellant is a man in his mid 20s.

2. On 19 December 1997 they appeared before J. Brennan Esquire sitting in the Magistrate's Court at Eastern. Each faced a charge of common assault. Both pleaded not guilty. And both were convicted after trial. Each was sent to three months' imprisonment suspended for 12 months; fined $4,000; ordered to pay compensation in the sum of $1,000; and ordered to pay $1,000 costs.

3. They now appeal against conviction and sentence. As to conviction, each of them appear in person. As to sentence, both are represented by Mr Hung.

4. The charges arose out of events which took place on the afternoon of 15 October 1997 in King's Road, North Point.

5. A member of a team of Hawker Control Officers had issued the 1st Appellant with a littering summons for throwing his cigarette on to the ground.

6. According to the prosecution, this led eventually to an incident in the course of which the assaults charged occurred thus. The 1st Appellant placed the palm of his right hand on the chest of one of the members of the Hawker Control team and pushed him causing him to step backwards. And the 2nd Appellant, who is a friend of the 1st Appellant, grabbed another member of the team by the neck causing him to fall to the ground.

7. There was evidence to the effect of what I have outlined. It was evidence which the Magistrate could properly accept. And he accepted it, doing so without in any way misdirecting himself.

8. In my judgment, there is no basis on which either Appellant can upset his conviction; and their appeals against conviction are dismissed.

9. I turn now to their appeals against sentence. The same two perfected grounds of appeal have been filed on behalf of each Appellant. These two grounds read:

"1. Having imposed a custodial sentence of 3 months suspended for 12 months, an order to pay compensation in the sum of $1,000 and an order to pay costs in the sum of $1,000 against each of the Appellants, who were both represented by a Duty Lawyer and were apparently lack of means, the learned Magistrate ought to have first enquired about the means of the Appellants before imposing any order of fine and/or fixing the fine in the sum of $4,000.

2. Having regard to the imprisonment sentence, other pecuniary orders and the circumstances of the case, the respective orders against each of the Appellants to pay a fine in the sum of $4,000, are manifestly excessive or too harsh."

10. I say at once that if the question of inability to pay is left to one side, there is nothing in the least excessively harsh about these fines for the sort of behaviour each of these assaults involved. The second ground fails.

11. That leaves the first ground. As to the same, the position is accurately summarised in this passage at page 116 of Cross and Cheung: "Sentencing in Hong Kong" Second Edition (1996):

"Once the court has indicated that a fine is under contemplation, counsel for the accused should place all relevant matters before the court concerning the accused's financial position. If, however, he is not represented, it is incumbent upon the court to make its own inquiries of the accused. Such an inquiry may often be dispensed with in cases when the proposed fines are insubstantial. R v Leung Yee-keung [1988] HKC 569, 570."

12. In the present case, each Appellant was represented by a Duty Lawyer who asked the Magistrate - and I quote - "to deal with both defendants on this occasion by way of a financial penalty."

13. Where a legally represented defendant asks a sentencing court to deal with him by way of a fine, then he has an obligation - just as he would have if the court itself had indicated that it was contemplating a fine - to place before the court information relevant to his financial position. If he does nothing in that regard, it is proper for the court to proceed on the basis that he is able to pay any reasonable fine. Of course if the fine imposed is an excessive one, then such excessiveness would of itself constitute a ground of appeal against the fine.

14. The fines here being in no way out of the ordinary for this kind of criminal behaviour, the Magistrate, having been asked to fine the Appellants, had no reason to think that they might be unable to pay.

15. That is quite enough to dispose of these appeals against sentence. But more can be said if need be. It is this. After he had passed sentence, the Magistrate asked the Appellants when the fines, compensation and costs could be paid. Each said "Next month".

16. Like the appeals against conviction, the appeals against sentence are dismissed.

(V. Bokhary)

Judge of the Court of First Instance,
High Court