HKSAR v. LOK MAN LUNG

HCMA 1074/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1074 OF 2000

(ON APPEAL FROM TWCC 1809/2000)

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J U D G M E N T

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1. The Appellant appeals against his conviction in respect of a charge of Wounding contrary to Section 19 of the Offences against the Person Ordinance, Cap. 212. He also appeals against the sentence of imprisonment of three months imposed for that offence. The Appellant was convicted of Careless Driving also, but no appeal arises from that charge. He was also convicted on his own plea of Driving a Motor Vehicle with an Alcohol Concentration in the Breath exceeding the prescribed limit of 22 micrograms alcohol in 100 millilitres of breath. The Appellant was almost three times over the prescribed limited, he having 62mg of alcohol per 100ml of breath. On that charge, the Appellant was fined $5,000.00 and disqualified from holding or obtaining a licence for a period of 12 months.

2. The Magistrate granted bail pending appeal and suspended the payment of compensation on the first and the fine on the third, charges. The Appellant does not object to the compensation or fine, but appeals the period of disqualification on the third charge as being too long.

3. The charges arose from events in the early morning hours of 29 March 2000, when the Appellant drove his car into the rear of a taxi. There was a discussion about compensation which degenerated into an assault on the taxi driver.

4. The Magistrate, having considered the evidence, concluded that the prosecution had negatived self-defence. Although he did not accept the taxi driver as a witness who was telling the whole truth, the Magistrate was satisfied from the unchallenged Record of Interview that the Appellant had punched and kicked the taxi driver. The medical evidence showed that the victim had superficial bruises and abrasions over the left periorbital region. The left ear was swollen with a superficial laceration, a 1.5cm long laceration was found at the right scrotum and suturing of the skin laceration was needed under local anaesthesia.

5. The Magistrate concluded that the taxi driver had been hit on the head more than once. In his Statement of Findings, he examined the question of self-defence and found that he was satisfied that the Appellant had acted unlawfully.

6. In sentencing the Appellant on the first charge, he took into account that this was a serious matter. He considered the mitigation advanced by the Appellant's counsel but found no unusual matters of mitigation that would rule out a sentence of imprisonment. He obtained a report for a Community Service Order on defence counsel's urging, but concluded that this was a case where a custodial sentence was appropriate.

7. This was in fact the Appellant's third conviction involving violence, he having two previous convictions for Assault Occasioning Actual Bodily Harm in 1998 and in 1999. Although the Magistrate rightly accepted that those offences had been dealt with, it was clear that he could not consider a Community Service Order a realistic option given those previous convictions.

8. In respect of the sentence on the third charge, the Magistrate took account of the Appellant's clear traffic record and the fact he had pleaded guilty. However, he also took into account, as he had to, the fact that the alcohol concentration was three times the legal limit and, rather unsurprisingly, found the 12 months disqualification was the appropriate period. Given that high concentration, a significantly longer period of disqualification would have been justified.

9. I have considered the facts of the case and the Magistrate's Statement of Findings and his Reasons for Sentence. I am satisfied that he took into account the appropriate matters and that he did not err in convicting, or sentencing, the Appellant. Accordingly, the appeal against conviction and the appeal against sentence are dismissed in this case. The Appellant is required to serve his sentence and to pay the fine and compensation that were suspended. On Appellant's application a period of 21 days in which to pay the fine and compensation is granted.