HKSAR v. CHIU FEI

HCMA 35/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 35 OF 2001

(ON APPEAL FROM WSCC 14332/2000)

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J U D G M E N T

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1. The Appellant appeals against a sentence of 6 months imprisonment imposed on him for a single offence of Assault Occasioning Actual Bodily Harm. This offence was committed whilst he was serving an 8 years term in Stanley Prison for other offences. The Magistrate in sentencing took particular cognisance of the fact that these offences were occurring, apparently, more frequently in Stanley Prison and coming before him to deal with. He considered that there was no justification for the conduct of the Appellant, who punched the victim in circumstances where the victim could not anticipate what was happening and was not in a position to protect himself. The Magistrate believed, correctly, that the sentence must reflect the serious nature of an assault by one inmate on another within the confines of a prison and help ensure that proper discipline is maintained.

2. However, although the Magistrate knew the Appellant was serving a total of 8 years imprisonment, it appears that he did not take particular heed of that fact by considering the totality of the sentence. Accordingly, although the sentence of 6 months was neither excessive, nor wrong in principle given the circumstance of the offence, the Magistrate, properly, should have taken note that this Appellant was already serving 8 years imprisonment by adjusting the total sentence. Accordingly, I allow the appeal to the extent of ordering 3 months of this sentence to be served concurrently with the term of imprisonment the Appellant is currently serving and that 3 months be served consecutively to that current sentence.