HKSAR v. SO MING

HCMA264/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 264 OF 1998

(On appeal from NKC 1622 of 1998)

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J U D G M E N T

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1. The appellant, SO Ming, appeals his sentence of two months' imprisonment imposed on him on 20 March of this year by Mr Alan Wright, Permanent Magistrate, sitting at the North Kowloon Magistracy upon a single count of assault occasioning actual bodily harm.

2. The appellant is an adult of 28. He is married and has a child. He is in employment as a decoration worker. He has previous convictions in 1989 for possession of an offensive weapon and in 1994 for operating a gambling establishment. Neither offence was an offence involving violence.

3. The facts to which he admitted on his plea of guilty are as follows. In the early hours of 20 February, a motor car cut in front of a motorcyclist. The car and the motorcycle came to a stop at a traffic light and the motorcycle drew alongside the car. The motorcyclist kicked the front of the car - it was admitted by the defendant that it was a light kick - and gestured to the driver to show his disapproval of the earlier cutting in.

4. When he did that four people who were in the car got out of it and began to assault the motorcyclist, one of those four was the appellant. They managed to drag the motorcyclist from his bike, though he remained on his feet. The assault continued; it consisted of punches and kicks. In the course of it, the visor of the motorcyclist's helmet was broken and the shattered pieces cut his face.

5. A police patrol was in the vicinity and witnessed the attack, they came along to render assistance. On their approach, one of the four men who had got out of the car ran away, but the other three were caught by the police officers, one of them was the appellant.

6. The motorcyclist suffered many superficial injuries. There were multiple abrasions to his left shoulder and his right chin and a small laceration on his upper lip. None of the injuries can in any way be said to be life-threatening or disabling.

7. In sentencing the appellant to serve his two months' imprisonment, Mr Wright took account of his guilty plea and reduced a starting-point sentence of three months' imprisonment by one-third to arrive at two months' imprisonment. In his reasons for sentence he said the following:

"I took the view that this was a wholly unjustifiable, sustained and violent attack by four persons on an individual. It seemed to me to matter little whether it was the conduct of the driver of the white motor car or the motorcyclist that was the proximate cause of the assault. On any basis, this is conduct which is to be deprecated in strong terms by the courts and which calls for a deterrent sentence in unconscionable behaviour, irrespective of the catalyst."

8. He went on to say that he had given consideration to imposing a Community Service Order and had decided against it. He also said that he had considered the possibility of suspending the sentence of imprisonment, but felt that suspension would take away the deterrent effect of imprisonment. It is clear from his reasons for sentence that he took into account that there had been an altercation between the parties prior to the offence, and that the injuries sustained were minor.

9. Clearly, Mr Wright took a very serious view of this matter which involved gratuitous violence by a motorist and his companions upon another motorist just because he had, to them, the temerity to criticise their driving manner.

10. I entirely agree with Mr Wright's comments, attacks by road users on other road users are not to be tolerated. Those who think that they can vent their anger at having their driving habits criticised by other road users by assaulting them, can only expect to be dealt with very severely by magistrates. The short, sharp shock of a short prison sentence is the best way of treating these offenders. It is possibly the best way of nipping this anti-social behaviour in the bud before it takes hold in Hong Kong.

11. To my mind, Mr Wright was quite correct in rejecting the possibility of a Community Service Order, given the fact that the appellant had previous convictions. And he was quite right in saying that to suspend the sentence would effectively be to negate its effect.

12. An argument has been put before me this afternoon that there is a disparity in the sentence that Mr Wright imposed on the appellant when set against the sentences passed on the other two men who were caught and who were dealt with by a different magistrate. They were sentenced to serve 120 hours of community service. Those men had clear records.

13. The fact that another magistrate may have taken an unduly lenient view of the offence is no reason for my allowing an appeal where the sentence passed is the appropriate punishment for the offender. This principle is well recognised in Hong Kong and is exemplified in the case cited to me by the prosecution of R v SO Hung-lee and Another [1986] HKLR 1049. The final sentence in the headnote of which reads as follows:

"Where different sentences were passed on different occasions by different judges on different accused for the same offences, then the only consideration would be whether the sentence passed on the appellant was appropriate."

14. The appellant's appeal against sentence is dismissed.