THE QUEEN v. TSUI KOON LOK

IH THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

Magistracy Appeal No. 872/87

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JUDGMENT

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1. The appellant was convicted of Assault Occasioning Actual Bodily Harm, contrary to Section 39 of the Offences against the Person Ordinance and Possession of an Offensive Weapon, contrary to Section 17 of the Summary Offences Ordinance.

2. The appellant had nothing to say in support of his appeal against conviction which, it being without merit, I dismissed.

3. In his appeal against his sentence of detention in a Detention Centre he was represented by Mr. Leo Remedios, who submitted that the magistrate failed to attach sufficient weight to the mitigating factors.

4. The offence was a serious one. It involved an attack by four men who struck the victim with aluminium softball bats. Fortunately the victim was not seriously injured.

5. There was no evidence that the appellant actually struck any of the blows, but he was arrested following a chase immediately after the assault and he was carrying a softball bat. The victim identified him as being one of the group of four and assumed he had struck him because he was still carrying a bat.

6. The appellant is only 15½ and very much younger than the other assailants. This is his first conviction. He has left school and was working as a warehouse assistant at the time of the offence.

7. The magistrate called for reports from the Commissioner of Correctional Services, the Director of Social Welfare and the Probation Officer. The latter's report was favourable. The appellant had a normal family background and had been a well-behaved child at home. He now showed remorse and admitted to the Probation Officer that he was in need of help. His family are concerned and came to court.

8. The reason the magistrate did not accept the Probation Officer's recommendation to place him on probation was that this was a premeditated attack with weapons and he felt society demanded that the appellant should be punished.

9. I bear in mind that the appellant has now spent nearly three months in custody, a sufficient punishment in my view for his part in this crime. There is, I think, a real chance that he will benefit from a period of probation. It is therefore in the public interest, as well as his own, that I should make such an order.

10. The appeal against sentence is allowed and the Detention Centre order quashed. The appellant is placed on probation for 18 months.