HKSAR v. KWOK KA MING

HCMA304/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 304 OF 2008

(ON APPEAL FROM ESCC 923 OF 2008)

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J U D G M E N T

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1. This is an appeal by the appellant against the sentence of 8 months’ imprisonment imposed upon him by Mr Tallentire at Eastern Magistrates’ Court on 14 March 2008 following his plea of guilty to one charge of inflicting grievous bodily harm, contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212.  The learned magistrate ordered that 6 months of that sentence run consecutively to the sentence the appellant was then serving.

2. On 3 January 2007, the appellant had been sentenced to 32 months’ imprisonment in the District Court for the offence of robbery.

3. On 16 September 2007, he was serving that sentence in Stanley Prison.

4. After supper that day, the appellant came up to a fellow prisoner who was in a washroom squatting down washing his hair.  The appellant firstly assaulted him with his knees causing him to fall to the ground and when he stood up, the appellant punched him in the left eye causing it to bleed.  Correctional Services Department officers intervened to stop the fight.  Under caution, the appellant claimed that he had been assaulted and had fought back.

5. Ultimately, the victim had to undergo an operation for retinal detachment of his left eye as a result of the incident.  Fortunately, the operation was successful.

6. The magistrate noted that the appellant had 20 previous convictions, two of which involved violence.  He also noted that the appellant was due to be released for the robbery offence in August 2008.

7. He noted that the Duty Lawyer had advanced little by way of mitigation save to say that the appellant was sorry for the incident.

8. He continued :

“  In my opinion, this was a serious assault, severely aggravated by its having taken place in a correctional service facility.  It is obvious that acts of violence in prison have the potential to spread and result in wide scale disruption.  The assault itself whilst not involving a weapon was in two phases, first being the use of the knees and then the second, the punch to the eye.  The second action led to injuries requiring a corrective operation.  The defendant, I noted had a previous conviction involving violence in 1997 and was at the time of this conviction serving a substantial sentence for robbery.  I took as a starting point 12 months immediate imprisonment reduced to 8 months for the plea of guilty.  Then applying the principle of totality I ordered 6 months to be served consecutively with his existing sentence of 2 months concurrently.”

9. I am satisfied that on the facts known to the learned magistrate, the sentence imposed by him cannot be criticized.  The courts must make it clear that violence in correctional institutions is totally unacceptable.  Those sentenced to custodial sentences are entitled to serve their sentences without fear of physical violence.  The appellant is fortunate that the magistrate did not order that the whole of the 8 months sentence should run consecutively with the sentence he was then serving. 

10. Unfortunately, for some reason it was not drawn to the attention of the magistrate either by the prosecutor or the Duty Lawyer representing the appellant that the appellant had already been the subject of prior disciplinary proceedings on 20 September 2007 as a result of this incident at a time when the gravity of the victim’s injuries (his detached retina) were not appreciated.

11. The penalty imposed on that occasion was :

(1) Forfeiture of seven days’ remission in respect of his sentence on the robbery charge. 

(2)  Forfeiture of cigarette privileges for 28 days.  

(3)  Separate confinement for 28 days.

(4)  Withdrawal of earnings for 28 days.

12. I have been told by Ms Lam that in normal circumstances disciplinary proceedings would not be initiated by the Correctional Services Department if it were anticipated that the matter would go to court.  However it is fair to say that in the disciplinary hearing in this case the appellant was informed that should the victim’s injuries become more serious then the matter could be referred to the police for prosecution.

13. I have also been informed by Ms Lam that despite the imposition of the sentence of imprisonment by the magistrate, that 7 days’ loss of remission still stood and the appellant had suffered that loss of remission in respect of the robbery offence.  He also suffered the other penalties imposed upon him in the disciplinary proceedings. 

14. While bearing in mind the relatively lenient sentence imposed by the magistrate, I am nonetheless still persuaded in the exceptional circumstances of this case that the fact that the appellant had already been the subject of disciplinary sanctions for the same offence should result in a reduction in the period of imprisonment served by the appellant.

15. As a result I allow the appeal to the extent that I order that for the term of 8 months’ imprisonment there be substituted a term of 7 months and that only 5 months of that term should run consecutively to the sentence the appellant was serving at the time of his conviction.