HKSAR v. LAI KA LUN

HCMA 1025/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1025 OF 1999

(ON APPEAL FROM TMCC 2956/1999)

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J U D G M E N T

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1. The appellant pleaded guilty to one charge of assault occasioning actual bodily harm and was sentenced to 4 months imprisonment. He was given bail pending his appeal against that sentence.

2. At the early hours of 30 August 1999, the victim, a security officer of the Kowloon Motor Bus Company Limited ("KMB") found the appellant sleeping and heavily drunk inside a KMB bus in Yuen Long depot. He woke up the appellant, showed him the way out and told him how to take public transport home. A while later, the appellant returned. When told by the victim to leave, he picked up a chair and chased after the victim. He punched the victim on his right eye and nose. As a result, the victim suffered loss of vision in his right eye. Prior to the hearing and at my invitation, the respondent made enquiries from the victim about the condition of his eye. The victim had undergone an operation in his eye. In addition, he had two courses of laser treatment which restored his vision to between 10 and 30%, but there is no prospect of further improvement.

3. The incident took place a few days after the appellant's 22nd birthday. It was a special occasion and he drank excessively. He said he was very remorseful and was willing to compensate the victim. The appellant is a cleaning worker and has one previous conviction in 1996 for theft.

4. Mr Wang, who also appeared for the appellant in the magistracy below, submitted that the appellant should be treated as a person with clear record as the conviction for theft was more than three years ago and for an unrelated offence. I have no quarrel with that.

5. Mr Wang then submitted that the magistrate placed undue weight on the lack of provocation and failed to take into account that the appellant was very drunk. He said that the magistrate erred in adopting a starting point of six months. He referred to R. v. Yung Yu Chung, Magistracy Appeal No. 138 of 1995 in which Litton JA, as he then was, suspended a sentence of one month imprisonment for two years. That is a very special case and is wholly distinguishable from the present one. In that case, the victim was assaulted by seven persons with iron pole and a wooden tool. He suffered minor injuries such as swelling and contusion and suffered no permanent disability. The victim knew the defendant personally, accepted his apology and requested the court for leniency. None of those considerations exist in the present case and the victim suffered nearly total loss of vision in one eye. This is a bad case of assault.

6. In The Queen v. Nguyen Van Thao, Magistracy Appeal No. 553 of 1996, a prison inmate pierced the eye ball of another using a ball pen was sentenced to six months imprisonment on the basis of a starting point of nine months. In that case, the victim did not suffer from significant loss of vision. Chan J, as he then was, held that the starting point of nine months is neither manifestly excessive nor wrong in principle. In that case, the offence took place inside a prison setting where its inmates are entitled to expect safety of their own person and that other inmates will conform to prison discipline. Discounting for that, I consider an immediate custodial sentence with a starting point of 6 months for assault resulting in permanent disability, such as loss of vision of one eye, appropriate.

7. As for Mr Wang's criticism that the magistrate failed to take into account the appellant's drunken condition, I think it is wholly unjustified. The magistrate was fully aware of the fact that the appellant was very drunk, but he held rightly that drunkenness offered him no mitigation. The learned magistrate was entirely correct. This principle is well established both in the United Kingdom and in Hong Kong. In Kirkland 4026/C/75 (cited in Thomas, Principles of Sentencing, 2nd edition), a man was sentenced to three years imprisonment for arson. In Kirk 36/A/72 (also cited in Thomas), a sentence of four years was upheld for stabbing a man in a fight. In Secretary for Justice v. LAU Lun-leung, Application for Review No. 3 of 1999, a sentence of 30 months imprisonment for attempted rape was increased to 5 years on review. The offences involved in these cases are offences involving specific intent. Yet, no or little discount was given for drunkenness. A fortiori, I do not see how drunkenness could be a mitigating factor for offences, such as assault, which does not require specific intent.

8. Indeed, in Secretary for Justice v. LAU Lun-leung, the Court of Appeal held at page 9:

"If drunkenness is a factor which leads to violence over and above the forced necessary to commit rape, drunken violence will nevertheless aggravate the offence with the result that the sentence will be increased."

In my view, our society does not encourage or condone excessive drinking. If a person voluntarily permits himself to consume excessive alcohol as to make himself lose his self control thereby injuring innocent people, he may not excuse himself by relying on his self induced drunkenness.

9. Mr Wang criticised the magistrate for failing to call for any report or consider other form of punishment such as community service order, probation or suspension. In view of the serious injury, this is a case in which the only appropriate option is one of immediate imprisonment. In such a case, there is no reason to overload the probation service with unnecessary background reports. Counsel should be fully briefed by the appellant as to his background. It is only when counsel has persuaded the magistrate that such background is material and would assist the magistrate in deciding the sentencing option or the term and the magistrate considers verification of the background desirable then such report would be called for. Even today, I do not see any need for such a report.

10. Mr Wang reiterated the appellant's remorsefulness and his earnest intention to compensate the victim. However, he had his liberty for six months since September last year pending his appeal. In the intervening six months, he took no step whatever to approach the victim to discuss compensation. In my opinion, his remorsefulness is superficial and his intention to compensate is but empty words for the ears of the magistrate only. Anyway, the very generous one third discount for guilty plea has assumed in his favour the usual elements of good record and remorsefulness. There is no room in the present case for further discount.

11. In the circumstances, I am satisfied that the magistrate has adopted the correct starting point of six months and has given the appellant the usual discount for his guilty plea. The sentence of four months imprisonment he awarded is not a day more. Accordingly the appeal is dismissed.