HKSAR v. NG WAI LUNG

HCMA239/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.239 OF 2002

(ON APPEAL FROM KCCC 1057 OF 2002)

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J U D G M E N T

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1. The appellant pleaded guilty before a magistrate to a charge of wounding and was sentenced to 10 weeks' imprisonment. He appeals against the sentence of imprisonment.

2. The facts which were not in dispute were admitted by the appellant. He admitted that he attacked the victim with a key on his head and face for seven to eight times and caused some lacerations to the top of victim's head and on the face near the left eye. I have seen two photographs showing those injuries.

3. He has one previous conviction of assault which took place in 1997 and for that offence was sentenced to imprisonment for six months. Strong mitigation was urged on the magistrate. Counsel told the magistrate that the appellant and the victim had been friends for a long time. The magistrate was also told that the victim was in fact involved in the assault in 1997 but the appellant took all the blame and let the victim off. Later they went into a business partnership but the victim backed out leaving the appellant in a very difficult situation. On the day in question the appellant met the victim in the bar by coincidence. There was a heated argument, the appellant lost his control, followed the victim into the toilet and took out from his pocket a small key and hit the victim with the key.

4. Counsel for the appellant urged the magistrate to consider community service order. I accept that the offence is a serious one which normally would merit a sentence of imprisonment. It is difficult to criticise the magistrate for imposing the sentence of immediate imprisonment for a short period. I think the only criticism is that had the magistrate called on this occasion for a report on community service order he would have been in a much better position to assess the appropriate sentence. The magistrate took into consideration that the offence was not premeditated and the injuries of the victim were not serious. The magistrate also considered the family and personal background of the appellant. He is now fully engaged in a cook food snack business earning about $25,000 a month. His girlfriend is suffering from cancer who needs his care and attention.

5. Now before me Ms Draycott who appears for the appellant strongly urged me to consider a community service order. She submitted that the offence was not planned or premeditated and they were there just by coincidence. I adjourned this matter for a report on community service order. I have now read and considered the report, which is favourable. I am satisfied that the appellant has shown genuine remorse and regretted very much all that he did at the time.

6. In the circumstances, I am prepared to give the appellant a chance and I consider that a prison sentence with immediate effect is not absolute necessary. The appellant can be punished in some other form of punishment. In the circumstances, I would allow the appeal and set aside the sentence of imprisonment of 10 weeks to be replaced by a sentence of community service order for 120 hours in such manner, time and place to be directed by the welfare officer.