HKSAR v. KWOK LAN BUN

HCMA572/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.572 OF 2004

(ON APPEAL FROM ESCC 2137 OF 2004)

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J U D G M E N T

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1. The applicant was convicted on his own plea of one charge of "wounding", contrary to section 19 of the Offences Against the Person Ordinance, Cap.212. He was sentenced to six months to run consecutively to an 18-month sentence that he was serving. He now appeals against sentence.

2. The facts were that the appellant attacked a fellow inmate in prison, causing him one puncture wound of "1 cm in diameter with a broken ball pen of about 3 cm inside" over the right forehead region, and three dotted abrasions over the left cheek and left ear region. The appellant himself suffered mainly scratches.

3. In his Reason for Sentence, the Magistrate had the following observations :

" I considered the use of the pen as an improvised weapon an aggravating feature. Such an offence committed in a correctional institution merited an immediate custodial sentence in my view.

The Defendant had a previous conviction for assault. I took 9 months as the starting point for sentence. I allowed a reduction for one-third to acknowledge the Defendant's plea and imposed a sentence of 6 months imprisonment which I ordered to run consecutive to the Defendant's existing sentence."

4. In my judgment, if the Magistrate erred, he erred on the side of lenience, as least insofar as it concerned the starting point.

5. Apart from the use of a weapon, the fact that it was a prison attack is in itself an aggravating factor. Its ferocity is also evident in the victim's head injury. I also refer to the comparable case of R. v. Cheung Wai-wah, CA 344 of 1989, cited by the respondent, in which 15 months' imprisonment was said to be lenient.

6. As regards the appellant's claim that the victim had threatened to beat him to death, it was something that had been drawn to the Magistrate's attention, in a way that suggested that it was not imminent, which in turn suggests that the only reasonable recource for the appellant was to seek the protection of the prison authority.

7. Finally, I find nothing of substance in what he told me today. The fact that he was insulted, or that he had never had a fight in prison before, or that he was put in a single cell as a result, are not factors that could affect the result of the present appeal.

8. I see nothing wrong in the composite term of 24 months' imprisonment. The appeal is dismissed.