THE QUEEN v. LAW HO KWAN

IN THE COURT OF APPEAL

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J U D G M E N T

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Fuad, J.A. delivering the judgment of the Court):

1. The Applicant appeared before Judge Pang in the District Court on six charges: three charges of criminal intimidation, one of blackmail, one of claiming to be a member of a triad society and one (Charge No.6) of common assault. He pleaded quilty to the common assault charge and not guilty to the others. He was acquitted of all the offences which he had denied after a trial before the same judge.

2. On 17th December 1987 the judge imposed a fine of $1,000 upon the Applicant for the common assault. He makes no complaint sbout the fine but seeks leave to appeal against the activation of concurrent suspended sentences of imprisonment totalling six months.

3. It was established before the judge that the Applicant had been convicted by a Magistrate's Court of blackmail., claiming to be a member of a triad society and theft, and sentenced, on 50 November 1985 to concurrent sentences of imprisonment of six months, six months and one month, suspended for two years.

4. The common assault offence admitted by the Applicant was committed on 28th July 1987 and therefore during the operational period of the suspended sentence. Common assault is an offence punishable with imprisonment and so the judge had power to order that the suspended sentence take effect, with the original term unaltered, under s.109C(1)(a) of the Criminal Procedure Ordinance. Indeed the judge was bound to take this course and was precluded from dealing with the Applicant in one of the other ways permitted by s.109C(l) "unless the Court (was) of the opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent offence".

5. The admitted facts are quite short and are recorded in the judge's "Reasons for Sentence" as follows: "The assault took place on 28th July 1987 when the accused hit the victim who was his former girlfriend while having an argument with her. The victim was hit on her cheek and hand." After referring to the suspended sentence, the learned judge said that having considered the background of the case, the mitigation put forward and the authorities concerning the activation of suspended sentences, he had concluded that there were no special reasons why the suspended sentence should not be activated. The accused had committed the offence at a time when he should have ensured that he did not transgress the law.

6. Of course, it must be remembered that the learned judge had tried the Applicant on the other charges of which he was subsequently acquitted and therefore knew a great deal about the background of the case, and he does mention that he considered the background. However, all we have before us about the facts of the common assault is what I have read from his seasons for Verdict and neither counsel was able to assist us further on the matter.

7. Clearly, the judge did not consider the assault a very serious one for he imposed only a fine. If there was anything in the background that made this apparently ordinary assault during a quarrel between a man and his former girlfriend more serious then it seemed, it has not been made known to us.

8. Due to the comparatively trivial nature of the subsequent offence (which is one of the matters the Conrt should take into account) the judge's order has not been shown to he justified. We would add that an additional factor was that the assault was committed when only just over three months was left of the two-year suspension period.

9. We allow the application for leave to appeal against sentence. We treat the hearing of the application as the hearing of the appeal and set aside the order made by the judge under section 109C(1)(a) of the Criminal Procedure Ordinance. This will have the effect that the Applicant is released from custody forthwith.