HKSAR v. WU KANG YAU

HCMA 436/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 436 OF 2004

(ON APPEAL FROM TMCC 713/2004)

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J U D G M E N T

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1. This Appellant is a man in his early 40s. He is married and has three children. By occupation he is a lorry driver. On 5 March 2004 he appeared before T S Jenkins, Esq. in the Magistrate's Court at Tuen Mun on a charge of assault occasioning actual bodily harm. He pleaded guilty. The Magistrate sent for a background report, adjourned the case to 19 March 2004 and remanded the Appellant in custody until then. On 19 March 2004, after considering the background report and hearing further mitigation, the Magistrate sentenced the Appellant to three months' imprisonment admitting the Appellant to bail pending his appeal against sentence.

2. The circumstances of this offence are set out as follows in the brief facts which the Appellant admitted in the Magistrate's Court.

"Both deft and PW1 were drivers working at above location. At above date/time, whilst they were working, deft approached PW1 and asked PW1 why he had been spreading rumour about him in front of their boss. They then had a dispute and at the heat of the dispute, deft picked up an iron oil tank (exh 1) and hit on the back of PW1's head. As a result, PW1 sustained injuries and a report was made to police. PW1 was sent to North District Hospital where he was medically treated by PW3 and discharged with the finding of 'laceration-occiput'. Upon receipt of the report, PW2 attended scene, arrested deft and under caution, deft admitted that he picked up exh 1 to hit on PW1's head because PW1 had been spreading rumour about him."

3. Why the Magistrate saw fit to sentence the Appellant as he did is set out in the last four paragraphs for his Reasons for Sentence which read as follows:

" 5.	The defendant admitted 3 previous convictions 1 of which was similar to the charge he faced albeit committed 20 odd years ago (his criminal record refers).
6.	The defendant was a married man with 3 children and the sole breadwinner of the family. In mitigation I was told that the defendant had compensated PW1 for his injury and that PW1 had forgiven the defendant which was confirmed by the background report. I was asked to consider imposing a financial penalty.
7.	In sentencing the defendant I accepted that the assault had been a spontaneous and impulsive one. By using the jerry can however, as a weapon to hit PW1 on a vulnerable part of his body (the head) the defendant could have inflicted serious substantial and perhaps permanent injuries. It was pure fortune that PW1 had escaped with relatively minor injuries.
8.	It was the highly dangerous nature of the attack itself that merited the imposition of an immediate custodial sentence in the defendant's case. I took as my starting point 41/2 months imprisonment and I reduced it for the defendant's plea to 3 months imprisonment. I so sentenced"

4. The discount given is a discount of precisely one-third. The Appellant's guilty plea would of itself warrant a one-third discount, especially as that plea was tendered at the earliest opportunity and had been preceded by complete co-operation with the police on the part of the Appellant who had admitted the offence under caution. Added to that is the further mitigation consisting of the fact that the Appellant had paid compensation to the victim.

5. Effect has also to be given, in the Appellant's favour, to the fact that he had acted in a sudden loss of temper. While that of course does not begin to excuse the Appellant's conduct, it is a material circumstance of the offence. An assault on the spur of the moment and in a loss of temper is not as bad as a premeditated assault.

6. The extent to which a loss of temper can be relevant to sentence is illustrated by R v. Abdul Ghafoor [1978] HKLR 223. The facts can be taken from the headnote:

" The appellant, a licensed night-watchman, was convicted on his plea of guilty before a magistrate of a charge of maliciously wounding the complainant, and was sentenced to two months' imprisonment. He had no prior convictions.

The appellant had returned from duty one morning to find the complainant wrongly occupying a bed which the appellant shared by rotation with others in a crowded apartment room. During an argument which followed, the appellant picked up a small knife and cut the complainant.

The magistrate had been wrongly informed that it was the complainant who had returned to find the appellant in the complainant's bed, and had found no mitigating circumstances for the offence.

Held:
1.	The true circumstances of the case now revealed to the court were a mitigating factor to be taken into account in considering the appropriate sentence.
2.	The fact that the appellant, a person of longstanding good reputation, stood to lose his licence and livelihood by reason of a first conviction for an offence which is not a common one in Hong Kong, and which resulted from an understandable outburst of temper, was a further factor to be taken into account.
3.	In the circumstances, the appellant should be discharged without recording a conviction.
Appeal allowed, conviction quashed and appellant discharged on recognizance. No conviction recorded."

Allowing the appeal, Trainor J said this at p. 224:

" The appellant is a person of hitherto impeccable character and stands to lose his licence to be a watchman if a term of imprisonment were to be imposed. I think it would be regrettable if a person who has held such a reputation for so long should find himself out of employment by reason of an outburst of temper. At the early hour of the morning in question at a time when he was, I am sure, very tired the circumstances were such as would, I think, make anyone irascible. In the circumstances I am going to deal with this case in such a way that the accused is released immediately and without recording a conviction.

The appeal therefore is allowed to the extent that the appellant be discharged on entering into a recognizance in the sum of $500 to come up for sentence within 12 months if called upon so to do. The conviction not to be recorded."

7. The present case cannot be dealt with as leniently as that one. But the fact that the Appellant had acted in a sudden loss of temper rather than with premeditation does have considerable effect in his favour.

8. In the present case, as has happened in Ghafoor's case and in R v. Yeung Yu Cheng, Magistracy Appeal No. 138/1995 (9 June 1995) heard by Litton VP (sitting as an additional High Court Judge), further material in mitigation was disclosed on appeal without objection. In the present case, the further material included a letter dated yesterday from the victim. This letter shows that the provocation was considerably greater than the Magistrate had been given to understand. In all the circumstances, including what the further material discloses, counsel for the Appellant invites me to consider a suspended sentence or perhaps the more lenient course of a community service order.

9. Counsel for the Prosecution conceded that the circumstances were unusual and that there is material in mitigation what is now before me but had not been before the Magistrate.

10. In all the circumstances including the fact that the Appellant has already spent two weeks in custody, I think that the appropriate course would be to allow the appeal so as to suspend the sentence, which is as it happens the course which Litton VP took in Yeung Yu Cheng's case.

11. In the result, the appeal is allowed to substitute for the immediate custodial sentence imposed by the Magistrate a suspended sentence of 3 months' imprisonment suspended for a period of two years. The Appellant should note that if he were to commit another offence within that 2 year-period, not only would he be punished in relation to that other offence, but he may be required to serve the sentence which I have suspended for the present offence.