HKSAR v. LAW HON HING

HCMA341/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.341 OF 2000

(ON APPEAL FROM TWCC NO.17 OF 2000)

-------------------------

----------------------

J U D G M E N T

----------------------

1. The appellant was convicted on 21 March 2000 of three charges : one of common assault, one of criminal damage and one of assault occasioning actual bodily harm. He was sentenced to seven days' imprisonment on each of the common assault and criminal damage charge and 14 days' imprisonment on the assault occasioning actual bodily harm. He now appeals those sentences.

2. The facts which were agreed were that at about 11:20 p.m. on 19 August 1999, a taxi-driver was driving his taxi with one passenger on board along Fung Shue Wo Road when he saw another taxi being driven erratically by the appellant. He sounded his horn in warning and overtook the appellant's taxi. He stopped at the traffic lights at the junction of Tsing Yi Road West and the appellant alighted from his taxi and shouted at him. It seems that at this point the victim used some foul language towards the appellant who then punched the victim in the face once. This was the first offence.

3. The victim drove off and stopped outside Hang Chui House in Cheung Hang Estate to allow his passenger to alight. The appellant had followed in his taxi, and he and anther male alighted from that taxi and assaulted the victim with fists. This was the third offence.

4. The appellant also kicked the offside front mud-guard of the taxi driven by the victim, causing a dent which was a criminal damage. The appellant then drove off and a report was made to the police.

5. The victim suffered a small sub-conjunctival haemorrhage over the left eye, mild bruises and tenderness to the left chest region and abrasions over both forearms. He did not suffer the only injuries. A medical report was obtained in respect of the appellant and he was found to have abrasions over the back of his left shoulder, bruises over the left side of his neck and right forearm and a laceration at his left middle finger with surrounding infection and swelling which was a result of a human bite. Both the victim and the appellant therefore suffered some injury.

6. The appellant is a taxi-driver of good character having no previous convictions. The first ground of appeal is that the magistrate gave too much weight to the deterrent aspect when she sentenced the appellant to an immediate term of imprisonment of 14 days. In arguing this ground, Mr Percy for the appellant has argued that the magistrate felt that she was bound by HKSAR v. So Ming, Mag. App. No.264/1998, to such an extent that she was precluded by its guidelines as being unable to impose any other sentence than one of immediate custodial imprisonment. I accept from him that So Ming is not a tariff case. In that case, a group of youth emerged from a car which had been kicked by a motorcyclist, and took him from his motorcycle and punched and kicked him causing what was described by the magistrate as "superficial injuries", "multiple abrasions" and "small lacerations". There, the judge held that :

"... attacks by road users on other road users are not to be tolerated. Those who think that they can vent their anger at having their driving habits criticised by other road users by assaulting them, can only expect to be dealt with very severely by magistrates. The short, sharp shock of a short prison sentence is the best way of treating these offenders. It is possibly the best way of nipping this anti-social behaviour in the bud before it takes hold in Hong Kong."

By relying upon that passage, Mr Percy argues that the magistrate was blinded to other alternative sentences and gave too much weight to the deterrent aspect.

7. The magistrate referred to the case of So Ming in this way :

"Taking So Ming's case as a guide, the facts are such that I consider a community service order is not appropriate, but that a custodial sentence is called for. ..."

It is quite clear that the magistrate considered So Ming and considered it as a guide, not to blindly reject any other form of penalty but to consider a community service order within what was said in So Ming and the facts of the case before her. I do not accept that she has rejected any other penalty than that of an immediate custodial sentence when she was arriving at the sentence to be passed.

8. The second ground of appeal is that she gave inconsideration to various features which are those set out in HKSAR v. Chow Chak Man [1999] 2 HKC 659 where the Court of Appeal set out the appropriate parameters to be taken into consideration when considering the imposition of a community service order. That case related to a burglary where a large quantity of goods were involved and the involvement of the appellant was not great. The various features to be considered are that the appellant was a first offender, comes from a stable background, a good work record and a regular job, shown genuine remorse, presents no more than a slight risk of reoffending, both his background and community service were favourable and he had a clear record. All these matters are present in the appellant in this case, however, that must be looked at also within the framework of the offence itself.

9. Drivers on our roads are entitled to use a warning device to warn another driver that he is driving in a manner which is erratic as happened here. Any driver who does so is entitled to believe that he will not, at the next traffic light, have an irate driver get out of his car and assault him. In this case, the attack did not just take place once but took place on two occasions, and on the second occasion, the appellant was joined by another whom he said, in part of the mitigation, was a friend with whom he had just had a meal and who, therefore, one would think was in the taxi with him as he followed the victim. Both of them acted in concert in leaving the taxi and coming to the victim and further assaulting him. It is an offence which is serious, and not an offence which, in my view, can be appropriately dealt with by way of a community service order. This is a case which demands an immediate custodial sentence.

10. Mr Percy acknowledges that the sentence is not wrong in principle and with that I would agree. He says, however, that it is manifestly excessive.

11. Successive attacks by at first, one person and then two persons aiding each other in the attack where some direct injuries are occasioned is not a minor matter and by saying that I do not suggest, in any way, that community service orders are not an alternative in appropriate cases to immediate custodial sentences nor that they are available only for minor cases. My point is that this case is of such a nature and such severity that it warrants, even when considering the alternative of community service orders, an immediate custodial sentence. I agree with the magistrate and find that the duration of the sentence is also entirely appropriate.

12. Mr Percy asks that I consider a suspension of that sentence, but I do not consider it appropriate in this matter.

13. The appeal against sentence is dismissed.