HKSAR v. KOO KAU

HCMA190/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.190 OF 2001

(ON APPEAL FROM NKCC 821 OF 2001)

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J U D G M E N T

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1. The appellant was convicted on 9 February 2001 of one charge of assault occasioning actual bodily harm. He was sentenced on the same day to two months' imprisonment. He now appeals that sentence.

2. This was a plea of guilty. The facts were agreed and were that the appellant is a driver of a public light bus. At about 10:20 in the evening on 10 January 2001, he was driving a bus with a number of passengers on board. He drove to a location in Bute Street near Sai Yeung Choi Street in Mongkok where he asked two of the passengers to get off. It was the minibus terminal.

3. The 1st prosecution witness (PW1) refused to do so, as he claimed the stopping point was 20 metres short of the actual terminal. An argument started. In the heat of that argument, the appellant took out a water pipe and hit PW1 twice, causing a swelling of the arm and a 1-cm abrasion on the left face. These were treated in hospital and the victim was discharged.

4. Having been cautioned, the appellant admitted hitting the man out of anger as he kept swearing at him. The magistrate said this in passing sentence :

"6. Before passing sentence I considered whether it was necessary to call for reports. I was satisfied there was no need to do so. I was satisfied that the duty lawyer had told the court sufficient detail of the appellant's background in order to pass sentence. Notwithstanding the appellant's age I carefully considered whether to call for a community service order suitability report. Whilst the victim may have acted in a rude manner passengers are entitled to be protected from the use of violence in the manner displayed by the appellant. The offence was a serious offence and not one that could appropriately be dealt with by way of community service. I was satisfied this was a case that demanded a custodial sentence.

7. After careful consideration I was satisfied there were no exceptional circumstances warranting suspension of the sentence. I was satisfied that the appellant's good character, age and lack of pre-meditation were common features of many cases and not exceptional factors justifying suspension. They did however amount to mitigation sufficient to persuade me to reduce the length of sentence."

5. It is true that the magistrate was given some basic background in respect of the appellant. The appellant is aged 71 years of age. He is married and has been driving a public light bus since 1969. Although the magistrate was not told of the length of time he had been driving a bus, he was told that the appellant suffered from diabetes and that he had done so for over 10 years. Little further was said other than the victim was not seriously hurt.

6. From the information given to the magistrate, I cannot but agree with the sentence that he passed. In the circumstances, it was an entirely appropriate sentence and there were no factors given to him which would have justified his suspending that sentence.

7. I have with the consent of Mr Hui for the respondent, had placed before me further information. The appellant has suffered from diabetes for a period of 10 years but had on the day in question not eaten for a period of some eight hours prior to this incident taking place. He had exhibited at the time symptoms which the diagnosing physician find were suggestive of hypoglycaemia, i.e. he was sweaty, frightened, light headed and had palpitations. It was the view of the doctor who prepared the report that whilst the appellant is a controlled diabetic, it is possible that he did have a hypoglycaemic episode which might have accounted to his behaviour at the time of the incident. He has a clear record and in the period of time that he has been driving a mini bus, he has not committed any offence such as this although no doubt subject to considerable provocation from time to time. It would seem that there is a possibility that his medical condition could have contributed to his acts on the day this offence took place.

8. Having been placed in a position different from that in which the magistrate found himself for the time of sentence, I find that I am able to revisit the sentence. I take into account that the mini bus the appellant drove at that time was not his but one belonging to another person and that the piece of pipe used was not a piece of pipe which he kept for his own use. I am satisfied that given the nature of the attack and the weapon used that a prison sentence of two months is appropriate. However, given the medical background of the possibility of the diabetic symptoms having caused this incident, I find that there are circumstances which warrant the sentence being suspended. The appeal is allowed to the extent that the sentence is suspended for a period of 12 months.