HKSAR v. TONG CHI KEUNG

HCMA 322/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 322 OF 2008

(ON APPEAL FROM ESCC 1304/2008)

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J U D G M E N T

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1.  This Appellant pleaded guilty on 12 March 2008 before Principal Magistrate, Mr Garry Tallentire, to one charge of Assault Occasioning Actual Bodily Harm, contrary to common law and punishable under section 39 of the Offences Against the Person Ordinance, Cap. 212.

2.  The Magistrate ordered reports before sentencing to investigate the Appellant’s suitability for a Probation Order or Community Service Order (CSO).  On 26 March 2008 having considered those reports, the Magistrate sentenced the Appellant to 3 months’ imprisonment.  The Appellant appeals against that sentence on the ground that it is manifestly excessive.

3.  The facts of the offence, briefly, were that on 13 February 2008, the Appellant, who was working at a tutorial centre as a tutor, lost his temper with one of his male students aged 10, for his repeated mistakes in mathematics.  Consequently, he pinched the student’s left cheek and punched his left forehead.  The student told his mother about the assault later that day.  A report was made to the police.  A medical examination made on 14 February 2008 showed that the student had tenderness on his scalp and some bruising on his left face.  The Appellant was arrested on 18 February 2008 and under caution he admitted the offence.

4.  The Magistrate in sentencing took a large number of facts into account.  Foremost were the Appellant’s clear record and early guilty plea.  He noted that this was a one-off incident, that there was no premeditation, that there was only one victim and in this case there was only one assailant, the Appellant himself.  The level of violence was not high.  No weapon or instrument was used.  No serious injury resulted.  Favourable CSO and Probation reports were available.  The Appellant had been remanded in custody for 14 days for the obtaining of those reports.

5.  In his Reasons for Sentence, the Magistrate confirmed that he considered this a serious offence.  At paragraph 8 he said:

“While I would not go as far as to say that this type of offence is prevalent, I am aware that there have been assaults by tutors on their pupils in significant numbers over the years.  In sentencing the defendant, a man of hitherto clear record, it was not my intention to impose an out and out deterrent sentence, but one proportionate to the offence.  I am aware of sentences imposed in similar cases but feel the courts have not done enough to protect vulnerable young victims.”

He then went on to describe the facts of the present offence.

6.  The Magistrate adopted a starting point of 4½ months’ imprisonment, saying that he took a lower starting point than he would ordinarily have done, because of the mitigation and the positive reports.  It was from this starting point that he imposed a sentence of 3 months’ imprisonment, to take account of the Appellant’s plea of guilty.

7.  The Appellant relied on the favourable matters that had been drawn to the Magistrate’s attention and to that of this court.  A large number of letters were produced to this court which had been written, or in some cases drawn, by pupils, parents and tutorial centre staff.  They stated the high regard in which the Appellant was said to be held by the signatories and sought leniency for him.  Although I looked at those items I considered them irrelevant in deciding this appeal, but I accept that they may provide some solace to the Appellant.

8.  Various cases were referred to the court.  Those which concerned the question of sentence for similar cases were:

(1)    HKSAR v. Tang Chun-kuen HCMA 213 of 1999;

(2)    Secretary for Justice v. Choi Shuk-kan [2007] 3 HKLRD 421;

(3)    HKSAR v. Lam Kin-hung HCMA 11 of 2002;

The cases of Tang and Choi concerned assaults on children by tutors which were significantly more serious that in the instant case.  Their content was helpful as general guidance, but inevitably the court has to look at the circumstances of each individual case in assessing the proper and just sentence.

9.  Other cases considered the weight to be given to various factors which affected sentence and the assessment of an appropriate starting point:

(1)    HKSAR v. Lee Kwok-chuen Cr AP 445/2001;

(2)    Secretary for Justice v. Tso Tsz-kin [2004] 2 HKC 139;

(3)    HKSAR v. Leung Ping-nam [2008] 2 HKLRD 178

10.  In Choi, which was an application for a review of sentence, the Court of Appeal quashed the fine imposed and substituted for it a sentence of 3 months’ imprisonment suspended for one year.  In that case a tutor had physically chastised a 9-year old girl using a wooden ruler.  The child was beaten many times on her palms, upper arm and face and the assault was repeated the following day, resulting in serious bruising.

11.  The court commented that a fine was appropriate only in very minor instances of assault and that in severe cases it was incumbent on the court to impose a deterrent sentence.

12.  Having considered the elements of this Appellant’s offence the Magistrate commented that such an assault breached the trust posed in the Appellant by the victim and his parents.  He believed that the courts had failed to impose sufficiently severe sentences in past cases – although he did not refer to any particular case or cases.  I accept however that as a Principal Magistrate he would be in a position to gauge the prevalence of, or any increase in, such offences.  Nevertheless, it is my view that despite his lengthy experience, the Magistrate in this instance has imposed a sentence which is disproportionate to the offence.  This is a case where the assault, properly, can be described as minor, although that does not excuse or condone the Appellant’s act.

13.  I am reluctant to interfere with a sentence which was imposed after careful and thoughtful consideration by a very conscientious Principal Magistrate, but three months’ imprisonment for a first offender for an assault of this nature is too condign a punishment.  That is not to say that a sentence of imprisonment cannot be imposed on a first offender in a case of this type, but the gravity of the assault must be taken into account.

14.  I note the contents of the reports obtained, but although the Appellant was recommended as suitable for a CSO this is not the type of case for which a CSO is appropriate.  I consider that this is the type of case the Court of Appeal in Choi had in mind when they referred to a minor assault which could be dealt with by way of a fine.

15.  In the circumstances I allow the appeal against sentence and quash the sentence imposed by the Magistrate.  In substitution for it I impose a fine of $6,000 and make an order for compensation of $2,000 for the victim. 

16.  The Appellant is granted 21 days in which to pay the fine and compensation.