R. v. POON HOI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1083 OF 1996

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J U D G M E N T

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1. This is an appeal against sentence passed by Mr Wright at the Eastern Magistracy. The appellant, who is currently serving a sentence of ten years, pleaded guilty to a charge of wounding.

2. The facts were that he had secured his release from a cell and he went in to a waiting area, picked up a fibre-glass chair and hit another prisoner over the head with it. He said he did this because the other victim had previously assaulted him and he was very troublesome. He pleaded guilty.

3. The magistrate unfortunately did not state what starting point he adopted. The wound was minor. The weapon used was, as I said, a plastic chair not a sharp instrument, or anything like that. The magistrate said that the sentence had to be deterrent. I disagree. It may be that deterrent sentences can be passed to protect warders in prison. This type of offences must be on the basis of ordinary criminality.

4. The magistrate said the fact that the offence was committed in a correctional institution was an aggravating feature. I with respect disagree. Normal cases of violent behaviour are dealt with under the Prison Rules. However, whenever a wounding, or other serious assault occurs it is brought before the Courts. Nevertheless, the basis for any punishment must be on what the assault amounted to. Indeed, it might be thought to be a mitigating factor that a prison environment causes friction between prisoners. He also said it was the fourth occasion upon which this appellant had been convicted of violence. That was irrelevant. Magistrates are not permitted to take into account previous convictions. They must deal with the criminality of the particular offence.

5. The maximum penalty is one of two years' imprisonment in a Magistracy. The magistrate sentenced him to 12 months. If he had given proper discount for his plea, it would have meant a starting point of 18 months, which is far too high.

6. In my judgment, the appropriate starting point here was nine months' imprisonment and with the discount for plea, the sentence is reduced to six months which will be consecutive to the ten years the appellant is now serving.