HKSAR v. CHAN MO KONG, KEN

HCMA194/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 194 OF 1998

-------------------

----------------------

J U D G M E N T

----------------------

1. The defendant was convicted of one count of assault occasioning actual bodily harm on the 7th January 1998 by Ms Lee sitting at South Kowloon Magistrates Court and sentenced to four months' imprisonment.

2. The Defendant was a salesman at the Best Choice Video and Laser Company in Peking Road and the incident took place on the 12th December 1997 in the shop when the complainant, an overseas Chinese lady, who was a visitor to Hong Kong, went into the shop to purchase a Hitachi VCD player. Without going into all the details, on the magistrate's findings, the Defendant behaved rudely and unhelpfully. Briefly, after the complainant had agreed to purchase the VCD player, the complainant was told that the model she had purchased was no good, and the Defendant tried to get her to purchase a more expensive model. On being told that, the complainant informed the Defendant that she did not want to buy the Hitachi VCD player anymore, whereupon the Defendant told her that she could not now change the order. And although the complainant repeatedly asked for her receipt, the Defendant refused to give it to her, merely saying that the new merchandise was on the way. Eventually the complainant told the Defendant that she would call the credit card company to cancel the transaction whereupon the Defendant told her that the transaction had already been completed. The complainant then saw a telephone in the shop and called the police, while reading out the shop's address from an invoice pad. The Defendant on seeing this ran towards her and struck the side of her scalp. Then, according to the magistrate's finding, the Defendant violently grabbed the handset from the complainant and hit the right side of her forehead near the temple region with the handset. He then slammed the phone down. Following that the Defendant pushed the complainant's chest and when she turned round, he assaulted her left shoulder several times while giving chase when the complainant ran out of the shop. Subsequently, the complainant made a complaint to the police.

3. The complainant was examined by a doctor who gave evidence. He found a small swelling at the right side of her head and tenderness at the right side of her forehead. She was treated and discharged. As I have said, the Defendant was convicted after the trial by the learned magistrate and sentenced to four months' imprisonment.

4. In so doing, the learned magistrate had the assistance of a background report. She also took into account the Defendant's previous good character and the fact that he had already been remanded for two weeks pending sentence. She considered the mitigation advanced on his behalf and accepted his counsel's submission of the Defendant's regrets as to what had happened. She also noted the Defendant's willingness to pay compensation, but felt, in all the circumstances, unable to suspend a sentence of imprisonment.

5. The victim in this case was attacked on three occasions by the Defendant who, on any view, behaved extremely badly the whole time. On the last incident, the Defendant pushed the complainant and chased her to the door. The learned magistrate was thoroughly entitled to find that this was more serious than in the case of a single blow. The learned magistrate also took into account the fact that it had become prevalent for sales people such as the Defendant to try to sell more expensive merchandise after the sale for a less expensive item had already been transacted. This may, or more not, be so and it would be anti-social behaviour if nothing less, but this would not have been an element which I would consider on the facts in this case to be a particularly aggravating factor.

6. The Defendant's shop is situated in the Tsim Sha Tsui area and it deals with tourists daily. The learned magistrate also took into account the effect that such violence would have on Hong Kong's reputation as a tourist spot. She felt that a sentence with deterrent effect was called for and there was no other appropriate sentence than an immediate custodial sentence.

7. Lastly, the learned magistrate went on to say that had the Defendant not been a first time offender, she would have imposed a term of six months' imprisonment; however she gave him a credit for his previous good character and gave him a discount which appropriately reduced the sentence to four months.

8. On the appeal against his sentence, Mr Loughran who appeared on behalf of the Defendant took a number of points. First of all, Mr Loughran says that no sentence of general deterrence should have in the circumstances been imposed on the Defendant, he being a first offender and he cited Ho Kau v R [1978] HKLR 197, 198 and other cases for that proposition. As a general proposition, this is, of course, correct. It is undesirable, but previous good character is not a prohibition against imposing a deterrent sentence and if the facts are sufficiently grave, as they were on the magistrate's assessment, such a sentence may be perfectly proper. The Attorney General v. Lau Chiu Tak, [1984] HKLR 23, at p. 27 fully bears this out.

9. Secondly, Mr Loughran submitted that sentences of a generally deterrent nature are of "little value" in relation to offences, such as the assault here, which tend to be committed on the spur of the moment. And he cited R v Sargeant (1975) 60 Cr.App. R 74, at p. 77 where Lawton, LJ conducted a useful general discussion of the principles of sentencing to which I fully endorse. But Sargeant is no bar to a deterrent sentence even in assault cases when the circumstances demand it. The learned magistrate was entitled on these facts to take the deterrence factor into account. I certainly cannot say that she erred in principle.

10. I also have grave doubts about the spur of the moment argument so persuasively urged on me by Mr Loughran, since the complainant was attacked on three different occasions on that unfortunate day.

11. Thirdly, Mr Loughran submitted that there was no evidence that assaults of the kind, or in the circumstances here, were prevalent or so common as to require a sentence of general deterrence to others (whether for the protection of the tourist industry or otherwise).

12. This may be true, and of course I bear in mind the offence with which the Defendant is charged, but the bad behaviour of sales people in the Tsim Sha Tsui tourist area is nothing short of scandalous and Hong Kong's reputation as a tourist destination was a matter well within the province of the learned magistrate's discretion.

13. Fourthly, Mr Loughran says that any aspect of individual deterrence would, having regard to the "fall from grace", have been sufficiently catered for by

(i) a suspended prison sentence, or

(ii) the "clang of the prison gate" effect involved in the two weeks imprisonment already imposed by way of remand for reports (or, at any rate, involved in any period of imprisonment substantially shorter than the four months).

And he cited Attorney General v Wai Yan-Shun [1991] 2 HKLR 209.

14. Miss Ho's valid retort, relying on a number of cases of which Leung Kwong, [1993] 2 HKCLR 224, 225 was one, is that depending on the circumstances, a short term of imprisonment may prove salutary for a first offender, bearing in mind the trauma and the stigma.

15. I note also that the factors enumerated by Mr Loughran were matters which the learned magistrate took into account. It is not for me to interfere unless I am satisfied that she went wrong on matters of principle or took into account matters to which she was not entitled. I find that she has not erred in either of these ways and although the sentence may or may not be on the high side, and I do not think it is even if the deterrence factor had been left out, there is no scope for my intervention and I dismiss the appeal.

16. I am grateful to both of you for the care you have taken in both your written and oral submissions.