HKSAR v. NG WAI MING

HCMA782/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.782 OF 1999

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J U D G M E N T

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1. The Appellant was charged with an offence of common assault, in that on 31 May 1999 at outside a public parking lot near a fabric market at the junction of Lai Chi Kok Road and Yen Chow Street, Kowloon, he assaulted one Ho Keung-fu. When the Appellant appeared before the Magistrate, Mr Saunders, he pleaded guilty, and apparently the brief facts were read to him to which he admitted.

2. The brief facts showed that PW1, the victim, parked his car outside the said parking lot. He saw the Appellant driving his private car from a parking space, striking the right rear fender of a goods vehicle which belonged to the victim's cousin. The Appellant drove his car out of the carpark and stopped in front of the victim's vehicle, walked up to the victim who was still inside his vehicle, told him that the goods vehicle had blocked his way and suddenly punched the victim on the face. Then the Appellant got off. These brief facts, which were admitted by the Appellant, did not show the connection between the Appellant striking the goods vehicle and his subsequently punching the victim, or the reason for the assault.

3. The Appellant was represented by a Duty Lawyer before the Magistrate and in mitigation the Duty Lawyer mentioned that it was an incident that happened because the victim had parked along side the Appellant's car for three or four days blocking the Appellant's car. The Appellant could not get into his own vehicle and had to climb in through the sunroof. On the day in question, the Appellant went to argue with the victim and hit him. There was no injury sustained, although in the admitted facts, the victim was said to have sustained contusion in the right side of his face.

4. In his Reasons for Sentence, the Magistrate set out some facts, part of which was a paraphrase of the brief facts admitted by the Appellant, and part of which obviously he took from the facts presented in mitigation by the Appellant's Duty Lawyer. The Magistrate treated the case the same way as he would a case of "road rage", saying that the Appellant was entirely responsible for the accident, i.e. the collision between the Appellant's car and the goods vehicle, and then he said :-

"There was no suggestion of any provocation on the part of the victim, or any awareness on the part of the victim of the problem that had apparently been caused by the position of the vehicles."

The Magistrate appeared to be dealing with the facts presented in mitigation that the Appellant's car was prevented from leaving the parking lot a couple of days ago. The Magistrate opined that the violence used by the Appellant was gratuitous and ought not be countenanced by the Courts, wherefore he imposed a short sentence of 14 days' imprisonment to demonstrate the Court's attitude towards such cases.

5. Before me, Mr Percy, on behalf of the Appellant, showed me a statement given by the Appellant under caution to the police on 15 June 1999, in which details of the incident involving how his car was prevented from leaving the parking lot, which was apparently used by the fabric market participants, a couple of days before the occurrence of the incident. There, it was pointed out that the victim's car was one of the three cars blocking the three possible exits of the Appellant's car resulting in the Appellant abandoning the car for the day. On the day in question when he got back to the parking lot, he was able to move his car by climbing in through the sunroof because there were goods vehicles parked on either side of his car. When he reversed to get out, his car came into contact with the fender of one of the goods vehicles. On his way out, he saw the victim outside the parking lot, and on recognising him as the driver of one of the three obstructing cars, he went up to argue with him. Although no admission was made in his statement to the police, the Appellant accepted by pleading guilty and by admitting the brief facts that he punched the victim once.

6. The statement of the Appellant was not put before the Magistrate, as a result of which I must say the Magistrate was operating under a wrong impression as to what exactly happened, and why, and for what reason the Appellant punched the victim. Had he known the circumstances, I do not think that he would describe the incident as a "road rage". Certainly I would not apply that description to the incident.

7. In HKSAR v. So Ming, HCMA264/98 (16 December 1998, unreported), Deputy Judge Lugar-Mawson (as he then was) had this to say :-

"I entirely agree with Mr Wright's [the Magistrate] comments, attacks by road users on other road users are not to be tolerated. Those who think that they can vent their anger at having their driving habits criticised by other road users by assaulting them, can only expect to be dealt with very severely by magistrates. The short, sharp shock of a short prison sentence is the best way of treating these offenders. It is possibly the best way of nipping this anti-social behaviour in the bud before it takes hold in Hong Kong."

With those observations I entirely agree. However, the present case is very different. While I am not saying that the Appellant was justified in hitting the victim because of the circumstances surrounding the prevention of his car from leaving the parking lot a couple of days before the incident, I am of the view that his conduct could not be considered as a case of "road rage" and he should not, taking into account his personal circumstances, be punished in such a severe manner. Although he is a man with one previous record, he has never been sent to jail.

8. I am of the view that the displeasure of the Court should properly be reflected by imposing a heavy fine on the Appellant instead of sending him to prison for a period of 14 days. In the circumstances, I allow the appeal. The sentence is set aside and substituted by a fine of $10,000 with seven days to pay.