HKSAR v. LEE HON YUNG

HCMA 69/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 69 OF 2000

(ON APPEAL FROM ESCC 3248/1999)

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J U D G M E N T

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1. The defendant was convicted of wounding, contrary to section 19 of the Offence Against the Persons Ordinance, Cap. 212 and was sentenced to 3 months immediate imprisonment. The facts were as follows. With the best motive, the defendant and his friends including the victim had a drinking party in JJ Disco on 1 October 1999. There was nothing to suggest that they were other than decent people. Both the defendant and the victim had decent jobs. Shortly after midnight, a dispute arose between the defendant and his girlfriend over a trivial matter. Again, with the best intention, the victim attempted to persuade the defendant to leave. Unfortunately, that developed into a heated dispute between the victim and the defendant. They exchanged foul language and in the heat of the moment, the defendant threw a drink over the victim, who retaliated by throwing a drink back at him. Eventually, as the learned magistrate found after a Newton hearing that the defendant was the first person to throw a glass at the victim from a distance of 5 feet. The glass shattered and caused three lacerations on her face, which required nine stitches. She has a significant scar on her forehead, approximately 1 1/4 inch, and a semi-circular scar following the orbit under the left eye, about 1 inch in length. The learned magistrate rejected defence counsel's plea for community service order and sentenced the defendant to three months immediate imprisonment.

2. The main thrust of Mr Ground's appeal is that the learned magistrate should have considered community service order as a viable alternative to imprisonment. In HKSAR v. Chow Chak Man & Another [1999] 3HKLRD 37, the Hong Kong Court of Appeal followed the English Court of Appeal decision in R v. Brown (1981) 3 Cr App R(S) 294 at 295 and considered an offender best suited to community service order shall:

(1) be either a first offender, or one with a "light" criminal record;

(2) come from a stable home background, perhaps with a family;

(3) have a good work record - 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) have shown genuine remorse; or

(6) present no more than a slight risk of re-offending.

3. The defendant meets all these criteria very well. He has a clear record. He is the manager of a goldsmith shop and a partner of a lounge. He has a stable family, albeit one of cohabitation, and good family support.

4. The learned magistrate accepted that he was genuinely remorseful for what he had done. I would not differ from that view. The defendant had offered substantial compensation, though that was not accepted by the victim. He had sought medical opinion as to how to reduce the effects of the scars. I am satisfied that he had made a genuine and substantial offer for compensation which was not a vague or empty promise made seconds before sentence in the hope of buying out a prison term. He and the victim may have differences on quantum, which should best be resolved through civil litigation. I am satisfied that he was genuinely remorseful for having injured a friend and he is unlikely to be the type of person who would re-offend.

5. The learned magistrate carefully found that the defendant was the first person to use violence by throwing a drink on the victim deliberately and then threw a glass at her face. While recognising the defendant's good record and remorsefulness, he nevertheless took a serious view of the incident. He held in his reasons for sentence:

"That exposes the evil of the use of glasses as weapons in arguments in bars where disputes do sometimes erupt. It is conduct which has to be firmly deterred by the courts. I considered but rejected the submission that community service should be imposed. The offence was so serious that a non-custodial sentence could not be justified despite the appellant's personal mitigation."

6. Save the last sentence, I agree entirely with what the learned magistrate said. Glassing in bars is the sort of conduct which ought firmly to be deterred. However, I cannot lose sight of the fact that the incident arose spontaneously and more importantly, that it arose out of a "domestic" setting. The spontaneous dispute between friends has to be distinguished from the usual circumstances of wounding as a result of exchanging stares from strangers from a neighbouring table. The latter has a strong public element calling for deterrence; whereas the "domestic" setting in which the present case arose does allow some room for leniency.

7. While a section 19 wounding is a serious offence and the victim in the present case suffered nasty scarring and is not forgiving, I do not agree that this cannot be a case in which a non-custodial sentence is appropriate. Before introduction of community service order, probation even for section 17 wounding on a colleague is not unknown of. Each case depends on its own facts and on the personal circumstances of the defendant. Community service order has also been imposed on defendants committing far more serious and heinous offence than this. In HKSAR v. Chow Chak Man & Another the Court of Appeal set aside a 2 1/2 years prison term and ordered community service for a defendant convicted of burglary, involving goods worth $60,000 and pre-meditated use of the defendant's lorry to transport the stolen goods. In that case, there was a strong public element calling for deterrence and a custodial term.

8. In my view, community service order is not a soft option. It has an element of retribution in that the defendant is deprived of his liberty to a certain extent and has to perform community service. It is productive to the community and is reformative to the defendant. In an appropriate case meeting the criteria in Chow Chak Man the court should not be slow to consider this option, especially where the element of public deterrence is less wanting. Accordingly, I called for such a report and the Probation Officer recommended 160-180 hours of community service.

9. Had the learned magistrate's attention been drawn to Chow Chak Man and to the "domestic" setting in which the offence arose, he would most probably have at least called for a community service suitability report and considered community service as a possible option.

10. Sentencing is an art and is not capable of quantitative assessment. A court contemplating the incarceration of a first offender will always wish to recall the words of Bokhary JA, as he then was, in Attorney General v. Ng Sai Man, [1994] 1 HKCLR 151:

"if it is not necessary to send a man to prison for very long, it may not be necessary to send him to prison at all."

The defendant had a taste of prison life for 14 days and had heard the clang of the prison gate. Those 14 days, as is the initial period of any prison term, must have been the worst experience for an inmate. I think he has learned his lesson and will not offend again. He is a first offender and is genuinely remorseful. He had this matter worrying him for over a year. It is now time to rehabilitate than to punish. Accordingly, I allow the appeal and set aside the term of imprisonment and substitute it with a community service order for 200 hours to be completed within 12 months to reflect the Court's disapproval of the defendant's conduct.