HKSAR v. CHAN HONG

HCMA 1255/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1255 OF 2001

(ON APPEAL FROM TMCC 2449 OF 2001)

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J U D G M E N T

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1. The appellant was convicted upon his plea of guilty before a magistrate of the offence of possession of an offensive weapon contrary to section 17 of the Summary Offences Ordinance, Cap. 228. In respect of that offence he was sentenced to 3 months' imprisonment. The grounds of appeal now put before me today are:-

Firstly, the immediate custodial sentence imposed by the magistrate was wrong in principal in that in the circumstances of the case other non custodial alternatives were properly available to the magistrate and;

Secondly that in the event that a custodial or immediate custodial sentence was appropriate a sentence of 3 months' imprisonment was manifestly excessive.

2. The facts of the case as set out by the learned magistrate were that the appellant and his nephew operated fruit stalls adjacent or nearby one another. The nephew was approached by a creditor of the nephew's father who demanded payment of a debt owed by the father. The nephew and that creditor argued. The appellant then approached the arguing pair carrying a fruit knife he used at his own stall and told the creditor to go away or he would chop him. The creditor then went and got a police officer who arrested the appellant. Neither the creditor nor another person, the creditor's associate who was with him at the time, were injured.

3. The appellant is now 57 years old. Many years ago he committed a series of serious offences as a young man. The more serious of those were offences of manslaughter when he was 18 years old and aggravated robbery at the age of 24. He further committed various lesser but still significant offences up to 1984.

4. Since then he has apparently successfully reformed himself and built up a business. He has had no further convictions over the intervening 17 years. I must say, and the prosecution conceded, that there are significant factors in mitigation which can be advanced on behalf of the appellant. The offence in this case was spontaneous and in the heat of the moment. The weapon the appellant possessed for the purposes of the offence was one lying at hand at his workplace. The weapon was not aggressively displayed or pointed at the victim by the appellant but, from the agreed facts, was simply in the appellant's hand. The offence was committed not perhaps to "resolve a dispute" as the magistrate found, but simply to send the victim, and the victim's associate, who were demanding money from the appellant's nephew away.

5. Reluctant though I am to interfere with a sentence of this nature imposed by an experienced magistrate, it seems to me that more consideration could have been given to the imposition of a sentence other than one of immediate custody. I say that because of the appellant's apparently successful endeavours in leading a significantly reformed life over the past 17 years. In my judgment given the facts of the offence and the mitigation available to the appellant and his proven ability to control his temper over the past 17 years, he deserves a further chance, very likely a last chance, before being sentenced to immediate imprisonment. For those reasons I think the otherwise proper sentence passed by the magistrate should be suspended. Accordingly I order that the magistrate's sentence of 3 months' imprisonment be suspended for a period of 18 months.