THE QUEEN v. TSANG FAN WAH

No. 246 of 1988

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H E A D N O T E

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Common assault - trivial injury - first offender - imprisonment wrong in principle.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 246 OF 1988

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J U D G M E N T

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1. The appellant pleaded guilty to common assault before Mrs M. Chui at San Po Kong Magistrates Court. He was sentenced to three months imprisonment, suspended for twelve months, and ordered to pay $500 compensation to the victim.

2. The appellant is a taxi driver. On 11th February this year at 7.00 p.m. another taxi driver picked up two passengers in Tin Kwong Road. The appellant stopped his taxi, got out and accused the other driver of obstructing him. An argument ensued.

3. According to the statement of facts, which were admitted by the appellant, the appellant "hit victim's right shoulder once heavily with his hand and continued to hit victim's head with his right fist. When victim warded it off with his left hand, the defendant again hit on victim's left eye, right chin and chest crazily for about ten times and also kicked victim's right knee with his right foot".

4. The police were called. The victim was taken to hospital by ambulance, treated and discharged. The medical officer's findings were that the victim felt pain in his chest and chin and that there was a bruise on his left eyelid.

5. The magistrate adjourned the matter for two weeks for a probation officer's report and for an updated medical report. The defendant was remanded in custody, which, to my mind, was unnecessary in a case of this nature, given the fact that it was a minor offence and the defendant was a man of good character hitherto, who was on $500 police bail.

6. The report was a favourable one. The probation officer thought the offence was committed on impulse and said the defendant had given an assurance not to do it again

7. The magistrate nevertheless considered the offence merited a prison sentence. She quite properly expressed the fear that victims of street violence might be tempted to take the law into their own hands. She felt the penalty should reflect society's abhorrence of such behaviour.

8. On the other hand, I am satisfied the magistrate has placed too much emphasis on the Summary of Facts and too little on the medical findings. The former is, after all, culled from the victim's statement. The latter shows the results of the assault.

9. A sentence of imprisonment on a first offender for an assault, the only visible evidence of which is a bruised eyelid, is wrong in principle. However reprehensible the appellant's behaviour - I have no doubt that he will do his best to keep his temper in check in future - the proper sentence for this offence is a fine.

10. The appeal is allowed and a fine of $500 is substituted for the sentence of imprisonment. The compensation order will stand.