R. v. TSUI KAM KEUNG

1996, No. MA 1459

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The appellant was charged with assault occasioning actual bodily harm and claiming to be a member of a triad society and sentenced to one month's imprisonment and five months' imprisonment consecutive. He appeals against that sentence.

2. The facts are very short. He had had some drink and he was with some other people and he thought someone was looking at his wife, he obviously lost his temper and assaulted this man who was clearly punched on a number of occasions. In the course of that, the appellant claimed to be a member of the Sun Yee On.

3. It is a great pity that he did not plead guilty to this offence in which event no doubt a different sentence could have been passed. He had a minor previous conviction and Mr Massie is right that he is entitled to be treated as a man of good character. In my judgment, the appropriate sentence here is one that reflects the overall criminality on that particular occasion. I have no doubt at all that the reference to the Sun Yee On was said in a moment of anger or temper. I am sure he knew exactly what he was doing. That was no doubt to instill fear into this unfortunate innocent person. I am equally in no doubt that a custodial sentence is called for, but in my judgment, it should be of a short sharp shock to demonstrate that people are not permitted to behave like this.

4. I think the sentence on the first count was too low, the sentence should have been two months' imprisonment. However, in view of the fact that the magistrate may not have given sufficient allowance to his good character, I would not alter that sentence. As far as the other sentence is concerned, it is part and parcel of the same matter and should be treated as such. I reduce that sentence from five months' imprisonment to one month's imprisonment concurrent. It is accepted by the Crown that an offence under s.20(2) of Cap.151 can vary from an angry remark to one which not only instills fear, but is later shown to have been committed by a person with triad connections. I recently upheld a sentence of 12 months imprisonment for such an offence by a triad.

5. The magistrate was correct in not suspending the sentence, but in my judgment the overall criminality of this appellant justified a shorter period being passed.