THE QUEEN v. PUN WAI KEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 62 of 1987

____________

BETWEEN

____________

_______________

J U D G M E N T

_______________

1. The Appellant was convicted after trial in the Magistrates Court on two charges: Assaulting a police officer in the execution of his duty and possession of an instrument fit and intended for the injection of a dangerous drug.

2. On 8 November 1986 the police officer concerned was on duty in uniform at about 6:30 p.m. when he saw the Appellant using drug taking paraphernalia in a public toilet of a housing estate.  The Appellant, on seeing the officer, tried to dispose of the paraphernalia and the officer tried to prevent him from doing so.  A struggle ensued which lasted 8 to 10 minutes.  During the struggle the Appellant was able to grab the officer’s torch and strike with it on his neck with such force as to dent the metal and eject the lens and bulb.  The officer suffered such a severe neck injury that he had to be fitted with a neck brace which he was still wearing at the time of the Appellant’s trial a month later. The officer was treated in hospital for five days following the assault and was unable to work for seven weeks because of the injuries he suffered during the struggle.

3. The learned magistrate sentenced the Appellant to imprisonment for 9 months for the assault and to imprisonment for 6 month for the possession offence. The Appellant had a previous conviction for assault occasioning actual bodily harm. Less than six months before the commission of the offences with which this appeal is concerned he was sentenced to imprisonment for six months for attempting to mislead a police officer by giving false information with intent to defeat the ends of justice but the sentence was suspended for 12 months. The learned magistrate activated that sentence but reduced the period from six months to four for reasons which were sound but which are now of no concern. He also ordered the Appellant to pay $3,000 compensation to the officer.

4. The Appellant appeals against the sentences and the compensation order.

5. I can see no reason to interfere with any of the sentences whether considered individually or cumulatively. What does cause concern, however, is the manner in which the order for compensation was made.

6. Section 98 of the Magistrates Ordinance provides:-

“Where a magistrate ….. convicts a person of an offence and passes such sentence (if any) as may otherwise by law be passed, he may, in addition to the ….. sentence, order the offender to pay any aggrieved person such compensation for --

(a) personal injury;

(b) loss of or damage to property; or

(c) both such injury and loss or damage,

not exceeding $5,000, as he thinks reasonable.”

7. The officer suffered both personal injury and property damage (his wrist watch was broken as well as his torch). The learned magistrate was therefore empowered to order the Appellant to pay compensation. However, the prosecutor did not ask for such an order to be considered, nor did the learned magistrate indicate to counsel who then appeared on behalf of the Appellant that he thought an order for compensation should be made. The Appellant’s counsel had no opportunity to make submissions about whether such an order would be appropriate, about what the quantum ought to be or the Appellant’s ability to pay any sum so ordered. The learned magistrate gave no indication as to why he thought $3,000 was "reasonable” and, in fact, did not even mention the amount in his order. The terms of the order were.-

“All your bail money by shroff to victim towards compensation.”

$3,000 became the amount awarded because it equaled “all [his] bail money". The peremptory terms of the order suggest, in the absence of any reference to it in the Statement of Findings, that it was not made pursuant to the proper exercise of a judicial discretion. I therefore think that it should be set aside.