HKSAR v. CHUN SHING NGAN

HCMA70/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.70 OF 2004

(On Appeal From KCCC 17475 Of 2003)

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J U D G M E N T

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1. The appellant was convicted on 23 December 2003 of assault occasioning actual bodily harm.

2. The facts found by the magistrate were that the appellant and a girlfriend boarded a taxi driven by the victim. The appellant directed him to drive but the girlfriend told the driver to wait for others. The taxi-driver waited and the appellant became angry and punched the taxi-driver in the head. The taxi-driver fled from his cab chased by the appellant. The appellant was eventually stopped by his friends and was subdued by them. He continued to struggle on the ground until the arresting officer arrived. The victim suffered a bruise over the right eye and an abrasion to the upper lip.

3. The appellant had a clear record and had been at a wedding. He had consumed too much alcohol. He was remorseful. He apologized to the victim.

4. The magistrate took the view that taxi-drivers were particularly vulnerable to unprovoked attacks and that he should deal firmly with those who vented their rage, drunken or otherwise on taxi-drivers. The magistrate took as a starting point after trial a sentence of three months' imprisonment and gave a one-third discount for his early plea. The sentence was therefore two months' imprisonment.

5. Mr Boyton who appears for the appellant before me has raised a number of matters. Firstly, he says the appellant is eager to pay compensation to the taxi-driver and offers a sum of $3,000 which is presently the bail monies which the appellant will sign over to the taxi-driver. Secondly, I have the benefit of a probation service suitability report for a community service order. This was not called for by the magistrate and I do not in any way criticize him for not doing so. In that report are details of the background of the appellant and his remorse concerning the events of that day.

6. It is clear that a degree of remorse that he presently is demonstrating is rather more marked than that before the magistrate and, taken together with the compensation which will be paid by him, I am of the view, having approached this matter afresh, that justice would be served by allowing the appeal against sentence and making an order of 200 hours' community service.

7. In addition to that order for community service, the accused is ordered to remain drug-free and submit a urine sample for test upon request by his probation officer. He is also ordered to obey all lawful and reasonable directions from his probation officer in respect of his residency, work, study and leisure activities.