HKSAR v. HO LAI WING AND ANOTHER

HCMA 587/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 587 OF 2001

(ON APPEAL FROM TWCC 1337/2001)

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J U D G M E N T

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1. Each Appellant appeals against the sentence or sentences imposed upon him by Miss Julia Livesey sitting at Tsuen Wan Magistracy on 29 May 2001.

2. Both Appellants were sentenced to one month's imprisonment after plea on a joint charge of assaulting Mr Chan Yiu Ming, contrary to Common Law and S. 40 of the Offences against the Person Ordinance Cap. 212.

3. The 2nd Appellant was in addition sentenced to a concurrent term of one month's imprisonment after plea for assaulting Mr Wu Chi Ho occasioning him actual bodily harm, contrary to Common Law and punishable under S. 39 of the Offences against the Person Ordinance.

4. Both of the victims of these offences were members of the staff of the Tai Lam Tunnel. In the early hours of the morning of 20 April this year at around 1:30 a.m., they stopped a car driven by the 2nd Appellant, in which the 1st Appellant and another male were passengers, as it was approaching an auto toll booth as the car was not displaying an auto toll tag. There was then a dispute during which the 2nd Appellant got out of the car and punched Mr Wu Chi Ho once in the face causing him to fall to the ground. He was subsequently medically examined. Apart from tenderness, which is a subjective finding, he was found to be suffering from redness and swelling on his upper lip and gum. Following the blow to Mr Wu, the 1st Appellant got out of the car and both Appellants attacked Mr Chan Yiu Ming with blows to his face and stomach. The police were called.

5. When the Appellants appeared before the learned magistrate on 29 May this year, they declined the assistance of the duty lawyer and entered pleas of guilty. They were therefore not represented.

6. The learned magistrate informed them that it was a serious matter for which they could go to prison. When asked whether they wished to say anything they said they had nothing to say.

7. She sentenced the 2nd Appellant to concurrent terms of one month's imprisonment and the 1st Appellant to one month's imprisonment.

8. In her Reasons for Sentence she said this:

"This was a nasty and unprovoked attacked by the First and Second Appellants against tunnel officers, who carry out essential work, which entails regular contact with the public. They need to be protected from violence by the public, and they are as entitled to expect that protection, as are police officers.

Such assaults on police officers invariably attract immediate terms of imprisonment. Assaults on other car drivers in such situations also invariably attract immediate terms of imprisonment. No matters were put before me, which indicated that other than an immediate term of imprisonment should be imposed. I gave each Appellant full credit for their pleas of guilty, having taken 6 weeks imprisonment as my starting point. The whole incident can be treated as one incident, so I considered that it was appropriate to impose a concurrent term on the Second Appellant. I therefore sentence both Appellant to a term of 1 month's imprisonment."

9. There is only one ground of appeal in the perfected grounds of appeal drafted by counsel, namely, that it is wrong in principle to pass sentence without taking into regard the background of the 1st and 2nd Appellants.

10. Mr Kwok for the Appellants argues that once an accused person has pleaded guilty to or been found guilty of any criminal offence, the court is obliged to consider his background before deciding on the appropriate sentence. When asked by the court as to the extent of the enquiries he was suggesting a magistrate was obliged to make, he said that although as a matter of practice, antecedent statements such as those provided to the court in cases in the High Court and District Court are not given to the magistrate in proceedings in the magistrates' court, the magistrate is under an obligation to obtain at the very least the sort of information that is now contained in those statements prepared for the High Court and District Court before passing sentence. Mr Kwok has been unable to refer the court to any decided case in support of such a proposition.

11. In my view, there is no basis for the wide proposition put forward by Mr Kwok. While the magistrate will inevitably be told whether the defendant has previous convictions (and in this case the learned magistrate was told that the 1st Appellant had a clear record and the 2nd Appellant had one previous conviction of fighting in a public place some 10 years ago for which he was fined HK$500), it is a matter for the discretion of the magistrate depending on the circumstances whether to obtain further information on the background of the defendant and the nature of those enquiries.

12. If the proposition put forward by Mr Kwok was correct, the statutory provision in S. 109A of the Criminal Procedure Ordinance Cap. 221, insofar as it requires the court to "obtain and consider information about the circumstances" and take into account any information before the court which is relevant to the character and the physical and mental condition of the young offender before imposing a term of imprisonment on such an offender, would be unnecessary, (bearing in mind that it has been held that the section does not impose an obligation to obtain the information by way of social enquiry reports) because such enquiries would be necessary in all cases.

13. This does not mean that in some cases it would not clearly be appropriate for the magistrate to make further enquiries about the defendant's background before imposing a particular sentence.

14. As I have said, the decision whether to make further enquiries, and the nature of those enquiries, depends on the offence and the possible sentence that the magistrate had in mind. In this case, having heard of the 1st Appellant's previous good character and the 2nd Appellant's previous conviction, the learned magistrate found herself having to decide upon the sentence to impose on two relatively young men in respect of this incident.

15. Bearing in mind the nature of the incident and the relatively short term of imprisonment she would have had in mind, I am satisfied that she was not obliged to do more than she did, namely, inform them that they could go to prison and give them the opportunity to raise any matter that they wished the court to consider. They chose not to do so.

16. It was not wrong in principle in such circumstances to pass the sentence that the learned magistrate did.

17. Mr Kwok has conceded that his application by notice of a motion to adduce affirmations of the Appellants as fresh evidence pursuant to S. 118(1)(b) of the Magistrates Ordinance Cap. 227 is only relevant if I was to decide the sole perfected ground of appeal to which I have referred in his favour. I did not do so.

18. I would add that even taking into account the matters contained in the affirmations and what I have been told by Mr Kwok this morning, the sentences of the learned magistrate were in my view still the appropriate ones.

19. Those who resort to violence against others performing essential public services like staffing public tunnels should expect no sympathy from the court. All the more so if more than one person joins in the attack and the attack is at night. Hardship to the families of those who commit these offences is very unfortunate but a foreseeable consequence of the necessity to protect those who perform these duties.

20. I dismiss the appeals against sentence.