HKSAR v. WONG CHI KUEN

HCMA547/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.547 OF 2004

(ON APPEAL FROM ESCC2914 OF 2003)

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J U D G M E N T

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Background

1. The appellant was convicted after trial on a single count of common assault, contrary to common law and section 40 of the Offences Against the Person Ordinance, Cap.212. Having entered a conviction against the appellant on 8 December 2003, the magistrate, Mr Wyeth, called for and considered a probation officer's report together with a medical report on the appellant from Queen Elizabeth Hospital. On 12 January 2004, the magistrate sentenced the appellant to three months' imprisonment.

Grounds of appeal against conviction and sentence

2. By a notice of appeal dated 17 January 2004, the appellant appeals against his conviction on the basis that the magistrate was prejudiced against him and that he was not guilty of the offence. The appellant appears in person in respect of his appeal against conviction. His Notice of Appeal asserted that the magistrate was biased against him. By perfected grounds of appeal against sentence, Mr Parry, who appeared on behalf of the Hong Kong Bar Association Free Legal Service Scheme, on behalf of the appellant submits :

(i) the sentence imposed upon the appellant was manifestly excessive, having regard to the injuries to the complainant;

(ii) the magistrate erred in principle in determining that the appellant's culpability required an immediate custodial sentence;

(iii) having found that the injury to the complainant was not serious, the learned magistrate erred in determining and passing sentence that the offence was serious.

The facts

3. It was not in dispute between the prosecution and the defence that the appellant and the victim of the assault were well-known to one another having had a "boyfriend - girlfriend" relationship some twenty years earlier. In the early hours of the morning of 10 August 2003, Ms To Ching Ching was present at her bar premises in the "Alabar" Bar in Happy Valley. There came a time when she heard the appellant called her name. She turned and looked at him and then chose to ignore him. Soon thereafter she says she received a very forceful blow to her left ear. As a result she was unable to hear things properly and had a humming sound in her ear. She went to hospital. The medical report of her examination a little while later that early morning records "bruising at the left ear pinna" and "left ear pinna contusion".

4. The prosecution called three witnesses. Two of those witnesses said that they witnessed the appellant approaching the victim from behind and striking her a blow to her ear with the back of his right hand. Mr Fung Yuen Choy described the force of the blow as "very great" and the sound "loud".

5. In his defence, the appellant testified that although his right hand had come into contact with the face of the victim that it happened accidentally when she had turned suddenly, he having leaned forward to attract her attention with his hand. The force was "gentle" near the mouth, not the ear.

Reasons for conviction

6. The learned magistrate determined that the prosecution witnesses were "reliable witnesses doing their best to assist the court with honest, accurate accounts of the event. I believed them". In the result having rejected the defence evidence he determined "I was satisfied the evidence I accepted established the appellant had approached PW1 from behind and intentionally struck her forcefully to her left ear with a backhanded blow from his right hand. This blow caused the injury to PW1's ear".

Reasons for sentence

7. In his Reasons for Sentence, the learned magistrate noted that in the probation report, neither probation nor community service were recommended. Of the assault, the learned magistrate said "the appellant, a solidly build man, had approached PW1, a small woman, from behind then without warning delivered a heavy blow to her head with the back of his hand. The blow was of sufficient force to knock her off balance into the person next to her and leave her with the injury referred to in the evidence, albeit not a serious injury".

8. Of the motive for the assault, the learned magistrate proceeded on the basis that it was no more than irritation at having been ignored by the victim. The magistrate judged the assault to be "cowardly and unwarranted".

The appeal against conviction

9. In his oral submissions in person to the court in support of his grounds of appeal against conviction, the appellant merely reiterated what he had testified to at trial, namely that the contact between him and the victim had been accidental, he having reached out to her to attract her attention it being very noisy in the bar in which they were. When invited to identify to the court the reasons, if any, he suggested the learned magistrate was in error to have accepted the prosecution witnesses as "reliable witnesses" whom he had believed, the appellant had no reasons to advance. In those circumstances, I am satisfied that the learned magistrate was entitled to have convicted the appellant of the offence. Accordingly, the appeal against conviction is dismissed.

Appeal against sentence

10. In his helpful submissions Mr Parry has taken the court through a number of decisions of the Court of First Instance in magistracy appeal arising from sentences imposed in respect of the offence of common assault. Two matters emerge immediately. There is no tariff guideline and the circumstances of each case are clearly different one from the others. In the result, they are not of assistance to this court. In support of his submissions that the sentence of three months imposed upon the appellant was manifestly excessive Mr Parry submitted that the learned magistrate had failed to give adequate weight to a combination of the following factors :

(i) that the injury to the victim was not a serious one, being a bruise to the ear;

(ii) that the blow was struck in temper arising out of irritation from the refusal of the complainant to converse or even acknowledge the appellant and was not pre-meditated;

(iii) that the appellant had been recently discharged from hospital, as was apparent from the medical report made available to the magistrate having been diagnosed as having a "convulsion" and that he was an epileptic who suffered two or three attacks per year;

(iv) that the appellant was a 50-year-old man who had managed to give up a drug habit and who had not been convicted of any criminal offence since 1991.

11. In light of those matters Mr Parry submits that the learned magistrate was in error to determine that the only appropriate way in which to deal with the appellant was to sentence him to an immediate custodial sentence. Given that the probation report did not recommend a probation order nor a community service order, Mr Parry was driven to submit that the alternative available to the magistrate was to suspend the term of imprisonment imposed upon the appellant. Further, he submitted that in any event the sentence of three months' imprisonment, for a man sentenced to prison for the first time, was unnecessarily long.

Conclusion

12. A reading of the learned magistrate's Reasons for Sentence makes it clear why it is that Mr Parry's complaint is limited to the magistrate not having given adequate weight to the matters listed. It is apparent from those reasons that the learned magistrate had considered the various matters prayed-in-aid by Mr Parry. Specifically, he considered the alternative of a suspended sentence. He rejected that option on the basis that this was an unpleasant attack by a male on a female in the context of a former domestic relationship which was of sufficient force to knock her off balance and to leave her with an injury. The judge rightly categorized the attack as being "cowardly and unwarranted".

13. Given all the circumstances of the assault and, in particular, that it was a blow to the head by a man upon a woman launched upon her without warning from behind, the learned magistrate, in my judgment, was entitled to determine that an immediate custodial sentence was required.

14. The issue that remains is whether or not three months was the appropriate sentence. Given that the appellant was a middle aged man who is to be sent to prison for the first time, notwithstanding that it was a cowardly and unwarranted attack, I am satisfied that the sentence imposed is manifestly excessive. Accordingly, I quash the sentence of three months' imprisonment and in its place I impose a sentence of six weeks' imprisonment.