R. v. LAM YUK YIN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.679 of 1996

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J U D G M E N T

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1. This is an appeal against a sentence of six months' imprisonment imposed by a magistrate for an offence of assault occasioning actual bodily harm.

2. The offence was committed in September 1995 by this appellant, and according to the admitted facts, by another person named Lai. Lai was not been prosecuted. The appellant and Lai were supervisors for an artist agency. The complainant had been employed by them. In circumstances which are not clear, the complainant left the employment of the agency and went to work for another agency. He had, however, been told by his previous employers that he was not to work for any other company.

3. I pause to remark that the admitted facts were drawn and presented in an unhelpful way. It is far from clear under what circumstances the complainant left the company, and one is not told who it was who instructed him not to work for any other. Nevertheless, the complainant went to work for the other company, and it is that breach of instructions by him that prompted the beating which was meted out to the complainant by this appellant and by his colleague Lai. What happened was that the appellant and the man Lai went to the complainant's place of work, with Lai holding an iron pipe. The complainant was attacked, Lai using the pipe and the appellant jointed in by kicking the complainant. The complainant suffered multiple abrasions to his head, shoulders, forearm and loin and also a fracture of a finger. The complainant made a report to the police, and the appellant thereafter surrendered to them.

4. The appellant was at first charged with inflicting grievous bodily harm. To that charge he pleaded not guilty. Eventually, the charge was amended to one which alleged assault occasioning actual bodily harm, and to that he pleaded guilty.

5. The appellant is aged 30 years and had no previous convictions. That fact and the fact that he pleaded guilty to the offence are the main mitigating features. He was employed at the material time and contributed wages to his parents. It was also emphasised in mitigation that he surrendered to the police and it was said that the appellant was frustrated by the complainant's act in taking other employment when he had been told not to do so. He was said to be remorseful and willing to pay compensation and the court was also reminded that it was Lai, and not he, who used the pipe. The magistrate took the view that so serious was the offence that an immediate sentence of imprisonment was the only proper sentence. He used nine months as a starting point and imposed the sentence of six months' imprisonment after taking into account mitigating circumstances. He recognised the fact that Lai had used the pipe, but remarked, correctly in my view, that this was a joint enterprise. Some suggestion was made before me this morning that the appellant was not aware that Lai was holding a pipe. That suggestion was not made to the magistrate, and it is a suggestion which flies in the face of the brief facts.

6. The grounds of appeal argue that the sentence was too severe, and that the magistrate failed to take into account mitigating factors other than the plea of guilty and the clear record. The suggestion is made that whilst the magistrate commented that a term of imprisonment was the only way to deal with the appellant, that could not be the only way to deal with him. I am satisfied that what the magistrate meant was that given the facts of this case, an immediate custodial sentence was the only appropriate way of dealing with this appellant.

7. A number of authorities have been drawn to my attention. Whilst they are generally useful as broad guidelines, all depends upon the circumstances of a particular case. The truth of the matter is that this was a very nasty offence of this kind. The appellant resorted to outrageous conduct to deal with someone much younger than he because that other had dared, contrary to instructions, to take up employment with another. The appellant was in a responsible position in the company and this was an attack with full premeditation against a threatening background. Such tactics have a particularly sinister ring to them. Beyond that, however, the attack was a severe one, and in my judgment, the magistrate was quite right to impose an immediate custodial sentence. The sentence which he imposed was neither manifestly excessive nor wrong in principle and, accordingly, this appeal is dismissed.