HKSAR v. TONG KWOK SHUN

HCMA200/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.200 OF 2001

(ON APPEAL FROM ESCC 4074 OF 2000)

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J U D G M E N T

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1. The appellant was convicted on his own plea of an offence of common assault contrary to Common Law and Section 40 of the Offences Against the Person Ordinance, Cap.212. In respect of that offence he was sentenced to two months' imprisonment. He appeals against that sentence on the grounds that it was too severe.

2. The facts of the case presented to the magistrate were that during a party to celebrate a Mid-Autumn Festival held at Shek Ku Chau Drug Addiction Voluntary Rehabilitation Centre which, according to those facts, is on Cheung Chau Island, a quarrel broke out amongst some of the inmates. The victim of the offence, who was a voluntary worker at the Centre, was told to collect cans of beer which had been distributed to the inmates, so as to better control the situation. Whilst he was doing this, he was abused by the appellant and two other persons. They were complaining about him taking their beer away. The appellant and the two others eventually punched the victim. The victim sustained several blows. He was struck on the chest and once on the nose.

3. The appellant, before me today, suggested that he hit the victim only once and that was because the victim was coming towards him. The appellant, before the magistrate, was represented by a lawyer. His plea of guilty was unequivocal and plain. That plea of guilty was on the basis of the agreed facts before the magistrate. Those facts were read to the appellant at the time of this plea. They were read in open court and he personally agreed them. His assertions before me today that some parts of those facts were inaccurate, do not assist him in this appeal.

4. The victim suffered some bruising and a bloody nose but no significant or permanent injury.

5. The magistrate approached sentence in this way :-

He took into account that the appellant was not a first offender. He accepted from the facts that the assault on the victim was a group attack. He took into account that the victim was a voluntary worker at the facility, and expressed his view that it was the duty of the courts to protect workers, even voluntary workers, in such facilities from attack. For those reasons, he regarded the assault as serious and warranting a sentence of imprisonment.

6. In that, he must be right. People who work in facilities such as these which perform a valuable and necessary role in the rehabilitation of offenders and addicts so that they have some hope of returning to society are deserving of the protection of the law and the courts.

7. As the learned magistrate put it in his Reasons for Sentence,

"It must be that persons who work at such institutions cannot and must not be subjected to this type of conduct at all. The courts will endeavour to protect them. It must be that at times it is an unpleasant task that they are allocated, and it does not have to be made more difficult by persons carrying on in the way that the appellant and the other persons carried on."

8. The learned magistrate adopted a starting point of sentence of three months' imprisonment. Given the factors of the appellant being one of three assailants, and that some injury, albeit minor, was caused to the victim, that starting point cannot be criticized. The magistrate gave the appellant a proper discount for his guilty plea. The end result of sentence of two months' imprisonment was perfectly proper.

9. This appeal is dismissed.