HKSAR v. CHEUNG KOON LAP

HCMA 64/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 64 OF 2002

(On appeal from TMCC 2709/2001)

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J U D G M E N T

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1. On 23 November 2001, the appellant, Cheung Koon-lap, was convicted after trial by Mr John Glass, Permanent Magistrate, sitting at Tuen Mun Magistrates Court, of two offences. The first was that of misleading a police officer by making false accusations, and the second was that of assault occasioning actual bodily harm. The Magistrate remanded him in custody for the preparation of probation and community service suitability reports.

2. On 7 December 2001, after considering those reports, the Magistrate sentenced the appellant to serve 3 months' imprisonment on each charge, and ordered 2 months of the sentence in respect of the 1st charge to run concurrently with the sentence on the 2nd charge, making a total of 4 months' imprisonment.

3. The appellant, by notice, appealed against both his conviction and sentences. This morning he has abandoned his appeal against conviction. He prosecutes his appeal against sentence. Miss Lily Yew of counsel, assigned by the Director of Legal Aid, represents him.

4. The prosecution case is a strange one. It is that the appellant had arranged with a co-defendant to support a false claim of theft against the first prosecution witness. The first prosecution witness was an Indonesian domestic helper. She was in a supermarket in which the appellant and his co-accused were. The appellant walked up to her, grabbed her hair from behind and then thrust her head violently downwards so that it crashed on to a shelf on which a telephone was, causing part of the shelf to break off. As a result of the attack, the Indonesian domestic helper suffered an abrasion on her forehead. The appellant and his co-accused then proceeded to claim to the shop staff that she had stolen the appellant's wallet and the appellant made a report of this to a police officer when he attended at the scene.

5. The appellant elected neither to give evidence nor call any defence witnesses at trial. His case as put in cross-examination was that the first prosecution witness, the domestic helper, and indeed all the other witnesses who observed what had happened were fabricating their evidence. It was claimed that at the time he was using the telephone, he caught the domestic helper assisting another in the theft of his wallet and that she was injured when he attempted to apprehend her.

6. We are told this morning that he now claims, and indeed he claimed this to the Probation Officer, that he thought the woman he assaulted was a former girlfriend of his. There was no evidence of this led at trial whatsoever.

7. The appellant advances three grounds in support of his appeal against sentence: firstly, that the Magistrate erred in failing to attach any or sufficient weight to the recommendation in the probation report that he was suitable to undergo a period of community service work; secondly, the Magistrate erred in failing to advert himself sufficiently or at all to the possibility of the appellant serving a community service order; and thirdly, that the total sentence of 4 months' imprisonment was manifestly excessive. The Probation Officer had concluded in the report that the appellant was suitable to serve between 160 to 200 hours of community service.

8. The appellant was 31 at the time that he committed these two offences. He has four prior convictions, three are for theft and the last one was for obstructing a police officer in the due execution of his duty.

9. When sentencing the appellant on the 1st charge, the Magistrate observed:

"I took the view that the defendant's action had been premeditated and that serious allegations had been made against PW1. I found the circumstances of these false accusations fell into the more serious category for this offence."

10. In respect of the 2nd charge, the Magistrate observed that the attack was premeditated and brutal and that it must have caused substantial pain and shock to the first prosecution witness. He was certainly correct to say that; this was a brutal and calculated attack, committed upon a stranger. The appellant is indeed fortunate that the woman did not suffer more grievous injuries.

11. In respect of the possibility of imposing a probation order, or a community service order, the Magistrate said neither order was appropriate for Charge 2 because:

"The offence was one that I found demanded an immediate custodial sentence because of its brutality and mode of execution. I also found that neither a probation order nor a community service order was appropriate for the amended Charge 1 because I found the defendant had been the organiser of the offence and he had carefully planned the misleading of the police. I further note that the defendant had already previous convictions for criminal offences and he was therefore not a first offender before the Court."

12. The Court of Appeal in HKSAR v Chow Chak Man & Another [1999] 2 HKC 659, adopted the guidance given in the English case of R v Brown (1981) 3 Cr. App. R. (S) 294, on the indicia of the offenders who can be said to be best suited to community service orders. The English Court of Appeal in Brown had said that such persons will be (1) first offenders, or ones with a light criminal record; (2) come from a stable home background, perhaps with a family; (3) have a good work record - such orders are not designed to encourage the lazy or to show the idle the errors of their ways; (4) be in employment or have a realistic prospect of such; (5) to have shown genuine remorse; and (6) present no more than a slight risk of re-offending. The Court of Appeal observed in Chow Chak Man that these characterisations are alternatives. That was said in error, as the Court of Appeal pointed out in a later decision, HKSAR v Wong Yu Kuen Cr. App. 463 of 2000 (unreported), where Mayo VP, delivering the judgment of the Court, said at page 7 of the judgment:

"There is a further problem regarding Chow Chak Man & Another. It is referred to in the 3rd Edition of Cross & Cheung's Sentencing in Hong Kong at page 75. There is an error. It is that, according to the community, an ideal candidate for community service requires any one of six factors to be present before an offender can be said to be suitable for such an order. This is of course quite wrong. All the factors must be satisfied."

13. In this case the appellant has a previous criminal record and although it is not one of the most serious that I have seen, it cannot be described as being a light one. I also doubt that the appellant has shown genuine remorse, as witnessed this morning in his persistence in his claim that he thought the victim was a former girlfriend of his. He never claimed this at trial.

14. All that being said, even had the appellant met all the six conditions identified in Brown and adopted in Chow Chak Man, I would still have agreed with the Magistrate that the circumstances of these two offences were so serious that a community service order was an inappropriate method of dealing with the appellant. The fact that his co-accused received such an order is irrelevant as the co-accused only faced the charge relating to the misleading of the police.

15. The sentences passed upon the appellant are in no way excessive or inappropriate and his appeal against sentence is dismissed.