HKSAR v. CHEUNG YUEN CHUNG

HCMA329/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.329 OF 2004

(ON APPEAL FROM KCCC16532 OF 2003)

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J U D G M E N T

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1. The Appellant was convicted after trial of one charge of "Wounding" [Charge 1] and one charge of "Assaulting a Police Officer in Due Execution of his Duty' [Charge 2]. He was sentenced to 18 months' and nine months" imprisonment respectively. Six of the nine months in Charge 2 were ordered to be consecutive to the 18 months in Charge 1 thus giving a composite term of two years. He had lodged his appeal against both conviction and sentence, but was only granted legal aid for the latter purpose, and that is what he through Counsel pursues before me today.

At trial

2. This is how the case was run in the magistracy.

3. PW2 and 3 were uniformed police officers. They were patrolling Granville Road in Tsim Sha Tsui when they saw the appellant kicking PW1 his cohabitee who was lying on the pavement. PW2 and 3 separated the two but the appellant remained aggressive. He punched PW2 in the nose when PW2 stopped him from getting at PW1. The medical reports of PW1 and 2 were admitted.

4. In a twist, PW1 claimed that both she and the appellant had had too much to drink. She insisted on buying some more and the two got into an argument. Meanwhile, she slipped and fell and was injured. The appellant was just trying to help her up when the police arrived. This account tallied with the appellant's who added that because PW2 and 3 approached him from behind, he had put up a struggle without realizing that they were police officers.

5. In the end, the magistrate dismissed PW1 as an untruthful witness. He did so on the basis of her relationship with the appellant. He convicted the appellant on the evidence of PW2 and 3. He was aware of the inconsistencies involved but considered them "minor" and "nothing that one would not expect from a [similar] situation". He pointed to the fact that "there was adequate lighting for reliable observations". He described the appellant as "an evasive and dissembling witness".

On appeal

6. Counsel has put forward two grounds.

7. First, it is said that the magistrate had failed to consider all mitigating factors. In particular, it is said the appellant was drunk, had no pre-conceived idea to harm PW1 and was actually suffering from an "explosive loss of control" over a "provocative subject" (the appellant was heard accusing PW1 of seeing other men by police officers). It is said that the magistrate had overlooked the minor nature of PW1's injuries on the one hand (one laceration and a few abrasions) and relied on "some imaginary conditions" on the other. It is pointed out that although the appellant had two previous convictions, he had never been to prison. It is said that by testifying the way she did, PW1 must have forgiven him.

8. Second, it is said that the composite term of two years' imprisonment was either wrong in principle or manifestly excessive. In particular, it is said that the magistrate was wrong to order part of the sentences consecutive. It is said that the appellant was in fact sentenced to the magistrate's full sentencing powers for what really was a single incident.

9. In my judgment, Ground 1 is unsubstantiated.

10. Even a cursory reading of the oral reasons for sentence would show that the magistrate rejected drink as a factor, whether for or against the appellant. This is what the magistrate said, "The presence of alcoholic beverages in a scenario like this ..... would be an aggravating factor, not a mitigating factor. But, in any event, the evidence of the police, which I accept, doesn't support that submission." [p.44D to E of transcript] Not a minute earlier, he had said, "The officers said they had no recollection of any alcoholic beverage or the smell thereof in the vicinity." [pp.43U to 44A] The magistrate was entitled to this finding. People become emotional, even irrational, for all sorts of reasons, not only because of alcohol.

11. As regards PW1's injuries, this is what the magistrate said, "The injuries suffered by your wife are not as serious as they could have been, and she's lucky with that. Presumably, that's because your footwear wasn't of a more substantial construction." [p.44G] This reference to the footwear was not an "imaginary condition", but a remark indicating pleasant surprise that PW1 came so lightly out of the incident. What it clearly meant was that if the injuries had been more serious, an even graver view should be taken of the matter. It was a comment in the appellant's favour, not the other way round.

12. Finally, the appellant's previous record comprises one conviction and one binding-over each for the offence of "Assault Occasioning Actual Bodily Harm". The binding-over was for assaulting PW1, the same lady, three months before the present incident. [p.42T to 43D] It surpasses me how then the appellant's proneness to "losing control", or that PW1 had forgiven him, not to mention the fact that he had not had the taste of prison, could ever amount to mitigation. Short of a psychiatric condition, the appellant will simply have to learn to hold his temper. If, as his background report indicates, he has a weakness in that area, he will have to try harder. People cannot be allowed to use that as an excuse to take out their suspicion on their spouses.

13. I turn now to Ground 2.

14. As pointed out by the respondent, passing consecutive sentences for assaulting a police officer is supported by authority : Chan Hung Yau (HCMA183/2002). The question is one of quanta for the integral sentences and the totality of the ultimate one.

15. Notwithstanding the despicable behaviour towards PW1, and the fact that PW2 was made to bleed in the nose, and had his glasses struck off, I cannot help feeling that the sentences of 18 months and nine months were excessive. They do not tally with one's experience of cases of comparable facts and nature.

Decision

16. I will allow the appeal on that ground alone. Sentences of 12 months and six months are substituted for Charges 1 and 2. Three of the six months in Charge 2 will moreover be concurrent with Charge 1, giving a total of 15 months.