HKSAR v. LAM KIN HUNG

HCMA 11/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 11 OF 2002

(ON APPEAL FROM STCC 1452/2001)

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J U D G M E N T

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1. On 13 November last year the appellant, who was then aged 20 and who had not previously offended, pleaded guilty at Shatin Magistrates Court to an offence of wounding contrary to Section 19 of the Offences Against the Person Ordinance (Cap.212).

2. On 27 November the appellant was made the subject of a Training Centre Order and it is against that sentence which he appeals.

3. Following upon the appellant's plea of guilty to the offence his solicitor invited the Magistrate, inter alia, to call for a community service suitability report. This the Magistrate declined to do expressing herself in these terms:-

" Case is adjourned to 27 November for Detention Centre and Training Centre reports. All sentencing options are open and a custodial sentence is likely.

I am not calling for a community service order report ... because there are cases saying that one should not call for reports if it is not suitable ..."

4. It is quite plain to me that by that the Magistrate was saying that by reason of the nature of the offence she had made up her mind to limit the options to a prison sentence, to a Training Centre order or to a Detention Centre order. That view is reinforced by her criticism of the prosecution for not electing to have the case heard in the District Court and for her comment that the facts of the offence were the worst possible imaginable.

5. Lest it may be thought that I am in some way making light of the serious nature of this wounding let me dispel such notion immediately. What happened on the defence account of matters (which was not challenged by the prosecution) was this: the defendant believed that the victim had sexually abused both his girl friend and her younger sister and when he challenged the victim about this his challenge was met with verbal abuse at which the defendant suddenly picked up an abandoned water pipe which was lying near by and struck the victim over the head with it apparently more than once. As a consequence of that attack the victim suffered (inter alia) a fractured skull.

6. It is of course trite to say, as Ms Vivien Chan who appears for the Respondent said, that the blows to the victim's head might have proved fatal. But the fact of the matter is that they did not and by charging the appellant with the section 19 offence, rather than with a section 17 offence, the prosecution plainly accepted that when the appellant assaulted the victim he did not intend to do him serious injury.

7. In the event when the reports for which the Magistrate called were presented to her they revealed that whilst the appellant was not considered to be suitable for detention in a detention centre because he suffers from asthma, he was considered to be suitable for detention in a training centre.

8. When this appeal first came before me on the 28 February and after I read the papers on the file, including a transcript of the proceedings in the Magistrates Court and the grounds of the appeal, I forthwith adjourned it until 15 March and called for a community service order suitability report. That, in my view and with respect, given what is revealed by the transcript is what the learned Magistrate should have done. And the more so given that in her reasons for sentence she says this:-

"It is in the interests of the appellant and of the community that a rehabilitative approach be adopted."

9. In her reasons for sentence the Magistrate seeks to answer the detailed grounds of appeal as follows:-

" I was urged to put (the appellant) on community service order, as he satisfies all the criteria mentioned HKSAR v Chow Chak Man and another (1999) 2 HKC 659, and that it would be better for the appellant to be at university than in a training centre. However, for the reasons set below, community service is not appropriate for the case in hand, nor for the appellant, and I did not call for a CSO report.

Wounding is an excepted offence, and carries a maximum sentence of 3 years upon indictment, with a jurisdictional limit of two years in the Magistracy.

The defendant in The Queen v Li Fu Keung CA 84 of 1984 had struck a victim with a water pipe and folding stool, causing fracture of the left femur. He had made that attack because the victim had bullied the defendant's younger brother. Upon application to the Court of Appeal, the court held that the sentence of three years imprisonment was an entirely proper one, for a very serious assault.

Li Fu Keung was charged under section 17 for wounding with intent to do grievous bodily harm, and not section 19. Nonetheless, the facts are very similar, although in our present case the facts are more serious in that blows were aimed at the victim's head, and the injuries sustained were much more severe. I should say at this stage that I was very surprised that this case was brought in the Magistrates' court, and not the District Court.

Whilst I had brought the case of Li Fu Keung to the attention of defence counsel, I should make it clear that I did so because the facts of that case are very similar, and the sentence passed provides a useful guideline, and not because I was intent upon sentencing the appellant to the harshest sentence possible. If I were to sentence the appellant to imprisonment, I would take three years as a starting point, and after taking into account his plea of guilty, would arrive at 24 months; I should also give him a meaningful discount bearing in mind the jurisdictional limit of 2 years in the Magistracy, and would arrive at a sentence of 21 months. Another possible option is training centre...

The report showed that the appellant is hot tempered and impulsive, and indeed in mitigation his solicitor said that the appellant committed the offence upon impulse. The victim had interfered with the appellant's girlfriend, and had tried to sexually harass her 8 year old sister. The appellant had gone up to the victim, wanting to reason with him, but the victim's attitude was so had that it irritated the appellant and provoked him to commit the offence.

If the appellant was so hot tempered and impulsive that he would resort to hitting an unarmed person in the head with an iron bar with such force that the victim sustained a fractured skull, then it is clear that the appellant is in need of disciplinary training. Indeed the report concluded that "though caring and concerning about the defendant, the family members failed to exercise effective intervention and guidance on his weak temper control. It was due to his momentary anger coupled with his immature and weak problem-solving skill, defendant got into trouble with the law and committed the present offence.

I am aware that training centre would disrupt the appellant's studies, but upon release from training centre he can always go on to further studies if so minded. It is in the interest of the appellant and of the community that a rehabilitative approach be adopted, and taking into account his character and the circumstances of the offence, it is expedient that he should undergo training in the training centre, and that was the sentence I passed."

10. The perfected written grounds of appeal in this case are these:-

"1. The training centre order imposed upon the Appellant was manifestly excessive and wrong in principle. In particular the Magistrate

(a) wrongly failed to appreciate or take into proper account the significant difference between an offence committed with an intent to cause grievous bodily harm and an offence when no such intent was present;

(b) wrongly failed to appreciate or take into proper account that in Li Fu Keung (supra) three persons ambushed the victim in what was obviously a premeditated assault: in the instant appeal only the Appellant and victim were involved and the assault was obviously not pre-meditated since the Magistrate emphasised the Appellant's "hot tempered and impulsive behaviour" and appeared to accept the defence mitigation as to how the assault came about;

(c) wrongly failed to appreciate or take into proper account that the maximum sentence for the instant appeal offence was 3 years imprisonment compared with life imprisonment for a S.17 Offences against the Person Cap.212 offence;

(d) wrongly failed to give any real credit for the Appellant's plea of guilty by imposing a sentence he would almost certainly have received had the Appellant been found guilty after trial, namely training centre;

(e) wrongly adopted a manifestly excessive (notional) starting point of sentence of 3 years imprisonment, which was the maximum permissible sentence, and then gave a (notional) reduction of only 3 months below the Magistrate's limit of sentence of 2 years imprisonment which failed to properly reflect the extensive and varied matters of mitigation set-out before the Court;

(f) by virtue of the matters set-out above and in particular the adoption of a manifestly excessive (notional) starting point of sentence wrongly gave herself a justification for imposing a training centre order, defeating the mitigation and thereby wrongly denying the Appellant the proper opportunity of undergoing a community service order;

(g) wrongly failed to place any or any sufficient weight on the extensive mitigating factors in this case which included:

(i) the plea of guilty;

(ii) the Appellant's clear record;

(iii) the Appellant's genuine remorse;

(iv) the fact that the Appellant has suffered the "clang of the prison gates" and was remanded in custody from 13th November - 27th November 2001;

(v) the good background from which the Appellant came and the fact of the Appellant's strong support from family, friends and teachers;

(vi) the fact that the victim has apparently recovered well; (though this matter was mentioned by the Magistrate on 27th November 2001 it did not find its way into the Reasons for Sentence);

(vii) the fact that the offence was not premediated and occurred spontaneously;

(viii) the Appellant's relative youth;

(ix) the fact that the Appellant is studying at the Hong Kong Baptist University;

(x) the fact that the Detention Centre/Training Centre Suitability Report was somewhat harsh on the Appellant; and

(xi) that the Magistrate had concluded that "it is in the interest of the Appellant and of the community that a rehabilitative approach be adopted" but nevertheless failed to call for a Community Service Suitability Report.

2. By reason of those matters set-out above the Magistrate wrongly failed to obtain a Community Service Order Suitability Report and wrongly failed to accept that in the circumstances of this case that Community Service was a viable sentencing option."

11. I respectfully agree with a good number of those grounds of appeal where they take issue with the Magistrate's approach although, perhaps as an aside, had the appellant been found suitable for detention in a Detention Centre and had such an order been made I do not think that he would have had any justifiable ground for complaint.

12. As has been said many times before a community service order is not a soft option. Such an order is legislatively provided for to

"make provision for criminal offenders to be required to perform unpaid work of benefit to the community in place of, or in addition to, other sentences ..."

13. As is said in 'Sentencing in Hong Kong' by Cross and Cheung - and with which I respectfully agree - it stands as a sentencing option in its own right. Accordingly, in my view, it merits at least a consideration in an appropriate case such as the present one where the circumstances (or some of them) relate to those characterisations noted in HKSAR v Chow Chak Man [1998] 2 HKC 659 and perhaps where - and this seems to me to be important - there has been an impulsive and understandable but not excusable act of violence which is not accompanied by a specific intent to cause injury.

14. It seems to me to be beyond question that a community service order can effectively serve the dual purpose of punishment and rehabilitation. It is also effective not least because if an offender fails to observe the strict requirements imposed upon him by those directing his labours he is liable at any time during the term of the order to be 'resentenced' for the offence. That, or so it seems to me, is a powerful incentive for the offender to comply fully with the order and an equally powerful disincentive to offend again.

15. In the present case, given the appellants current education arrangements, it seems to me that to send him to a Training Centre where he would likely remain for a period of about 18 months would be wholly destructive and would serve little purpose in terms of his rehabilitation or in teaching him the error of his ways. I am reinforced in that view by the contents of a letter written to me by the appellant and a letter from the Hong Kong Baptist University both of which were handed to me during the hearing of this appeal.

16. The Community Service Report which I called for tells me that the appellant is suitable to be subject of a lengthy order and it helpfully sets out compelling reasons why that is so.

17. For all of these reasons I allowed this appeal against sentence. I quashed the Training Centre order and replaced it with an order that the appellant do 200 hours of community service.