THE QUEEN v. LAU CHI KEUNG

Magistracy Appeal No. 462 of 1984

IN THE HIGH COURT OF JUSTICE

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JUDGMENT

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1. This appeal results from an incident which occurred on the 14th June this year when the appellant admittedly assaulted the complainant, his common law wife. He stopped when she shouted out for help. A report was made to the Causeway Bay Police Station and the appellant was arrested but released on bail.

2. The matter came up before the Magistrate on the 19th June when the appellant admitted the offence but disputed a particular part of the facts relating to his motive for the assault. He was remanded in custody for 14 days for psychiatric and psychological reports.

3. The appellant came before the Magistrate again on 3rd July when the contents of the reports were put to him. Again there was a dispute as to the motive for the offence. At this time the Magistrate made no attempt to resolve this dispute as to motive, though the complainant's contention was that the appellant assaulted her while dragging her to the bed for sexual intercourse, while the appellant's contention was that he committed this assault because the complainant came home late and there was no supper for the children. Having noted that the appellant had a clear record the Magistrate sentenced him to three months imprisonment.

4. To me that sounds a very severe penalty to pass on a man who had never been in trouble before, and who had committed a common assault upon his common law wife over some personal problem (whichever of the motives was accepted). Bearing in mind that the injuries inflicted were not serious and bearing in mind that he had already been in custody for a period of 14 days. In my view the facts which were accepted by the Magistrate at that stage did not necessitate an immediate custodial sentence, but the justice of the case could have been satisfied by his being placed on probation or on a bond to be of good behaviour and to come up for sentence if called on.

5. But the matter did not stop there. The appellant made application for bail pending review stressing that he had a business outside and asking for a chance, but his application for bail was refused.

6. As was his right the appellant applied that same afternoon through a legal representative for review of his sentence. In view of the nature of the sentence imposed upon him that seems to me to have been a very reasonable course for him to take.

7. His legal representative addressed the Magistrate stressing the appellant's position as sole proprietor of a stationery company, his trouble-free record for 37 years, his plea of guilty, the fact that he had already spent two weeks in custody, that a petition for divorce has been issued, the fact that there were two young children aged 16 and 14, the fact that it was a family affair, that no weapon had been used, the fact that the wife came home later than she should have done the night before and the fact that the offence was committed because the appellant wanted sexual intercourse.

8. It is unfortunate that the appellant's legal representative referred to the last fact because that had not up to that stage been admitted. He did, however, introduce a further factor in mitigation which had the unfortunate effect of causing this case to be adjourned. The additional fact was that the appellant tried to prevent the complainant from receiving an electrical shock from an electrical wire. The prosecutor is recorded on the record as disputing that fact and the Magistrate then adjourned the hearing until the following afternoon at 2:00 p.m. on the 4th July for further instructions to be taken by the prosecutor. So the appellant had to spend yet another day in custody.

9. The following afternoon the prosecutor informed. the court that part of the psychological report (paragraph 3 on page 2) was disputed. This appeared to indicate that the appellant had not assaulted his wife at all but on the contrary was trying to assist her. In other words it was inconsistent with his plea of guilty and the facts he had admitted. There appears to have been an understand-able reluctance at that stage on the part of the appellant's legal representative that the matter should have to be adjourned once again, but the Magistrate decided that it was necessary that the disputed facts should be determined.

10. The matter was adjourned yet again for hearing on 1lth July. So the appellant had to spend a further eight days in custody. By that time he had been in custody a total of some 23 days.

11. On the 11th July the complainant gave evidence which substantially was in line with the admitted facts. It indicated that the motive of the crime was indeed the appellant's desire for sexual intercourse with his wife. This of course had already been admitted on behalf of the appellant by his legal representative at the time of the initial application for review. The complainant also described how she put the electric wire around her neck to stop the appellant dragging her to the bed. Under cross-examination she admitted that the appellant supported her financially, that the injury to her lip was not part of the assault the subject matter of this case, that in the assault the subject matter of this case she received a sprained ankle and a blow to her head in the struggle on the ground. She also admitted that the appellant released the wire from around her neck and "undid" the electric plug and that the reason for his doing that was because he was frightened she would get an electrical shock.

12. In view of the fact that the appellant had already admitted the Statement of Facts with the exception of the allegation that he had dragged his wife to bed and in view of the fact that the complainant had now conceded in cross-examination that the appellant had tried to prevent her receiving an electrical shock, it does not seem surprising to me that the appellant did not give evidence at this hearing. Mr. Tsang for the appellant contented himself by pointing out the fact that the appellant had been in custody for eight days (in fact it' was now 23 days) and that it was unlikely that there would be a repetition of this incident.

13. The Magistrate then remarked that the defendant had not given evidence and that this was most remarkable in the circumstances although he was not bound to and then sentenced the appellant to six months imprisonment.

14. In my view there was no justification for the Magistrate taking such an extreme course. Quite apart from the fact that he doubled up what was already a very severe penalty, it appears to me that he was motivated by the conduct of the appellant during the court proceedings at all stages.

15. In his Statement of Findings the Magistrate considered it appropriate to record that the facts of the case were the subject of dispute on almost every appearance and that accordingly he decided to hear evidence. He also considered it appropriate to record that the appellant had disputed the facts until the victim had gone through the distressing task and ordeal of giving evidence and that the appellant exercised his right for remain silent at that point. He gave no justification in his Statement of Findings for doubling up what was already a very severe penalty.

16. On an examination of the record of this case, it appears that at the first hearing the appellant disputed only the fact that he had dragged her to bed, but had otherwise agreed all the facts, that at the hearing on the 3rd July even his motive was admitted by his legal representative namely that he committed the assault because he wanted sex. It was because of the defence contention that the appellant had tried to assist the complainant to prevent her receiving an electric shock and that it was because the prosecution disputed this contention that the matter had to be adjourned or rather that the Magistrate decided that the matter had to be adjourned until the 4th July to accommodate the prosecution and to enable them to take instructions. On the 4th July it was because the prosecution disputed paragraph 3 of the psychological report that the Magistrate decided that the matter should be heard on the basis that "facts of admitted assault are disputed".

17. The appellant was granted bail by me on 18th July but was not able to raise bail until the 20th July which meant that up to that time he had spent some 31 days in captivity.

18. I consider that the appellant should now be released and I will make an order setting aside the term of imprisonment. Given the fact that the defendant has now been in custody for 31 days I will make no further order.

19. I would also stress the fact that the behaviour of a defendant and the conduct of his case in disputing facts is not a basis upon which what would otherwise be in appropriate sentence may be increased.