HKSAR v. LEUNG CHI LUNG

HCMA 776/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 776 OF 2003

(ON APPEAL FROM TWCC 2009/2003)

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J U D G M E N T

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1. The Appellant in this case was charged in the Magistracy with one charge of Assault Occasioning Actual Bodily Harm. He was sentenced to 5 months imprisonment and the learned Magistrate ruled that 4 months of that sentence was to run consecutive to the existing sentence he is serving.

2. The facts in this case as admitted by the Appellant was simply that both he and the victim in the case were working in the prison laundry when an argument started between them and the argument escalated and resulted in the Appellant attacking the victim by punching him and the attack was stopped by a CSD officer.

3. The victim in this case was sent for medical treatment and swelling on his eyelids and a deformity over the nasal bridge was diagnosed. The Appellant admitted under caution that he had lost his temper momentarily.

4. This morning, counsel for the Appellant, Mr Chan, submitted that the learned Magistrate was wrong in principle when he failed to give the Appellant the applicatory one-third discount because there were no exceptional circumstances or reasons that he should not to do so. And that if the learned Magistrate had given the necessary one-third discount from a starting point of 6 months, the Appellant would have been sentenced to 4 months imprisonment and as the learned Magistrate had considered the totality principle then, out of the 4 months, 3 months should be consecutive to the sentence he was serving.

5. I accept, and it is common knowledge, that a Defendant upon pleading guilty is entitled to expect a one-third discount and it has been said by the Court of Appeal time and time again that it is wrong in principle for a sentencing judge not to do so unless there were very exceptional circumstances which in this case I do not see any.

6. Ms Chan for the prosecution does not dispute the fact that the learned Magistrate had erred on this but the Respondent said that ultimately at the end of the day the sentence that was imposed by the learned Magistrate was a correct one and therefore, this court should not interfere with it. Ms Chan cited (placed in A) the case of the Court of Appeal HKSAR v. Au Kam Ming and others CACC No. 531 of 1997 where the court said that:

"The primary focus of the Court in an appeal against sentence is upon the sentence actually imposed. If the sentence is within the correct range of sentences properly passed for that type of offence by the judge, so that it is neither wrong in principle nor manifestly excessive, this Court will not interfere."

As Mr Chan correctly pointed out that case deals with the fact that if the sentence was within the range of sentences and was neither wrong in principle then the Appeal Court should not interfere.

7. But in the present case before me, as I have said, there is an error in principle, it is wrong in principle for the Magistrate not to have given the full one-third discount to the Appellant and therefore in those circumstances, I find that the learned Magistrate had erred and therefore the appeal should be allowed and the sentence that should be imposed on the Appellant is of 4 months' imprisonment, because the starting point of the learned Magistrate is a correct one. So, giving him the full one-third discount, he should be sentenced to 4 months' imprisonment.

8. Now, as for the totality principle, it is really at the discretion of the sentencing tribunal. The learned Magistrate in this case saw fit, after reviewing the circumstances, that one month of the sentence should be concurrent to the sentence he was serving and I intend to follow that reasoning and therefore, for the sentence of 4 months, one month will be concurrent and 3 months will be consecutive to the 4 years sentence he is serving.