HKSAR v. LAM SAU YEE

HCMA 128/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 128 OF 2001

(ON APPEAL FROM TMCC 3754/2000)

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J U D G M E N T

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1. This Appellant appeals against the sentence of 2 months' imprisonment imposed on him in the Magistracy for an offence of Criminal Damage.

2. The incident was attributable to the Appellant when he was annoyed by noise coming from the next door neighbour's house. He shouted out for the person inside to open the door and then kicked the wooden door. His right leg kicked through the iron grille causing damage to the door lock.

3. There was no suggestion that the victim had provoked the Appellant. The Appellant apparently was annoyed because he heard the noise of the neighbour chopping food for dinner, which as it was around 6 p.m. could hardly be considered unusual.

4. The Magistrate took a 3 months' starting point and sentenced the accused to 2 months' imprisonment. He noted the contents of what is an unattractive, but not major, criminal record.

5. Having looked at the facts of the case, I am of the view that although a custodial sentence was justified in this case as a matter of principle, that the sentence imposed by the Magistrate was too lengthy in the circumstances. A sentence of 21 days would have met the situation adequately, allowing for the circumstances of this case.

6. Accordingly, as the Appellant has been in custody since 11 January 2001, I order his immediate release.

7. I also urge on the Appellant that he control himself in future, because his record is unattractive and he may spend rather a lot of time in prison if he keeps giving in to minor annoyances like this.

8. The appeal is granted to the extent of allowing the Appellant's immediate release.