HKSAR v. CHOI KWOK KEUNG

HCMA 970/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 970 OF 2010

(ON APPEAL FROM TMCC 2815/2010)

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BETWEEN

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REASONS FOR JUDGMENT

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1.  The Choi Kwok Keung was convicted before a magistrate of one charge of loitering and causing others to be reasonably concerned for their safety or well-being, contrary to s. 160(3) of the Crimes Ordinance (Cap. 200). He was sentenced to one year imprisonment and is appealing against the sentence.

2.  The Appellant had previously also appealed against his conviction, but later filed a Notice of Abandonment through his solicitors.  There was an application to withdraw the Notice of Abandonment, which was refused and the appeal against conviction stood dismissed.

The facts

3.  PW1 was the operator of a seafood shop.  In August 2010, PW1’s shop front was blocked by a truck.  PW1 called the police and they ticketed the truck.  After the police had gone, the Appellant sat on a stool in front of PW1’s truck, preventing it from leaving.  The police were called again and the Appellant moved.  Thereafter, the Appellant started the engine of the truck and put it in high rev emitting a lot of noise and fumes, and he shouted foul language at PW1’s customers, telling them not to buy from PW1.  Within an hour or so, 2 more trucks arrived to park in front of PW1’s shop and the drivers said hello to the Appellant.  The Appellant kept revving the engine and shouting foul languages at the customers.

4.  3 co-defendants (D2 to D4) arrived, nodding slightly with the Appellant.  They spoke foul language and acted in bad attitude towards PW1’s customers, saying PW1’s seafood was not fresh.  D4 pretended to have slipped and lied down outside PW1’s shop.  PW1 called the police again and the Appellant and the co-defendants were arrested.

Reasons of the Magistrate

5.  The Magistrate viewed the matter very seriously. She added that the Appellant was somehow connected with demanding money from PW1’s neighbours.  She said a deterrent sentence should be passed.

Grounds of appeal

6.  The Perfected Grounds of Appeal can be summarised thus:

(1) The sentence of one year imprisonment was in all the circumstances manifestly excessive;

(2) The original offence was obstruction of a public place, transit or traffic under s. 4(23) of the Summary Offences Ordinance (Cap. 228), which carried a maximum sentence of 3 months imprisonment, and the Magistrate amended the charge on own motion to loitering which carried a maximum sentence of 2 years imprisonment, and the sentence was out of all proportion of the seriousness of the matter;

(3) The Magistrate erred in taking into account the hearsay evidence of extortion;

(4) The Magistrate failed to identify the background or circumstances (e.g. prevalence or repeated offending) which would call for a deterrent sentence;

(5) The Magistrate failed to give sufficient weight to mitigating factors set out in the Appellant’s probation report.

Discussions

7.  Mr Tsang, for the Respondent, did not seek to argue that the sentence was not on the high side.  But he submitted that although no triad element and no violence was involved, it was a very bad case of bullying which should be viewed by the Court seriously.  Hence, the sentence is not manifestly excessive and should not be tampered with.

8.  On the so-called “extortion” point, it arose in the context of explanation of the Appellant’s fear in that he heard other people had been demanded money by local bullies.  It was objected to by counsel at the trial.  Mr Chandler, for the Appellant, submitted that there was no proper foundation for extortion to be established or be linked with the Appellant. Regardless of this point, the sentence of one year imprisonment is manifestly excessive.

9.  The Appellant has been in prison since being sentenced on 8 December 2010.  He had applied for bail pending appeal but it was refused by a judge of the Court of First Instance.  The Appellant has been in prison for over 4 months, and I consider a sentence effecting his immediate release is appropriate in all the circumstances.

Conclusion

10.  In the event, I reduced the sentence to one which will effect the immediate release of the Appellant.