THE QUEEN v. LEE YIU LUNG

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BETWEEN

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J U D G M E N T

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1. This is an appeal against sentences passed on the 26th April of 1989, appeal against conviction having been abandoned on charges of refusing to drive to a required destination and of assault causing actual bodily harm.

2. The Appellant is a taxi-driver and on the 30th of December 1988 he picked up four passengers from the China Ferry Terminal in Canton Road. Two passengers were elderly and all had luggage. It was raining at the time.

3. The passengers asked to be taken to Wanchai via the cross-harbour tunnel but the Appellant declined as he said traffic for the tunnel was congested and without the passengers' consent he took them instead to the Jordan Road MTR Station. There the passengers refused to leave the taxi and it was driven to the vehicular ferry pier. There the Appellant went through a charade of trying to repair the engine which he said had broken down and finally in despair the passengers, took their luggage from the boot and walked away. However the Appellant still demanded his fare of $6.20 from one of them and when it was refused he was punched from behind on the cheek. There was then a struggle in which both men sustained minor injuries before the Police arrived, the passengers being a 2 cm swelling on his temple and a 1 cm bruise on his nose.

4. The Appellant has a previous conviction for common assault in 1980.

5. The trial magistrate imposed sentences of one month's imprisonment for the offence of refusing to drive to the required destination and three months', consecutive, for the assault. He also ordered the Appellant to pay $1,000 compensation and $1,000 costs. He said, and quite rightly, that this was a very bad case of failing to drive to the required destination and the assault, although done on the spur of the moment due to non-payment of the fare, was cowardly and totally unjustified.

6. Bearing in mind the very bad circumstances of the first offence, nevertheless it is an offence, which although the maximum sentence provided is one of six, months’ imprisonment, would only attract a sentence of imprisonment in the most wholly exceptional circumstances and in my view, certainly not where it is the Appellant's first offence of this sort. I would thought that a substantial fine plus disqualification in a bad case would be the right way to deter this type of offence.

7. As far as the second charge is concerned, this was obviously a stupid assault done on the spur of the moment. It was nevertheless unprovoked and cowardly. The injuries received by the complainant were very slight and, as Mr. Cheung has submitted, only on the borderline of actual bodily harm. The Appellant does have previous conviction for common assault but it was some eight years before. Again it was not the type of assault which would normally attract an immediate custodial sentence.

8. I accept that the Appellant is now very regretful. I note that his family is present in Court, that he has got a wife and mother to support and that he now fully realises what a very stupid incident this was. The compensation and costs have been paid.

9. I am satisfied that while the first offence was a very bad one of its type, neither it nor the assault called for imprisonment, but for substantial fines and a period of disqualification. The Appellant was in custody for some 37 days before bail was granted. I therefore allow the appeal against sentence and reduce the terms of imprisonment to such as will result in his immediate release.