HKSAR v. TONG YIU WAH

HCMA475/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 475 OF 2005

(ON APPEAL FROM STCC 471 OF 2005)

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J U D G M E N T

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1. This is an appeal against sentence only.

2. The appellant was convicted after trial at Shatin Magistracy of assault occasioning actual bodily harm, contrary to common law and section 39 of the Offences Against the Person Ordinance, Cap. 212.  He was sentenced to 3 months’ imprisonment.

3. The facts of the case as found by the magistrate were that the appellant had caused an altercation with another individual when the appellant had “jumped” a queue waiting for a public light bus at a terminus in Shatin by going straight to its front.  One of the waiting passengers in the queue (“PW1”) told the appellant to go to the back of the queue and a verbal exchange between the appellant and PW1 developed.  The appellant then grabbed PW1 by the collar and hit him with a mobile phone he was holding in his hand.  They fell to the ground and struggled.  Eventually, the appellant tried to leave but he was prevented from doing so by bystanders and the police were called.  PW1 was found to have sustained abrasions to his forehead, knee and hand, and a bruise near his left eye.

4. Mr Richard Leung says on behalf of the appellant that the sentence was wrong in principle and manifestly excessive.

5. In that regard, he says firstly that the magistrate wrongly understood the appellant’s previous criminal record to have included a total sentence of 12 months’ imprisonment for offences of claiming to be a member of a triad society and criminal intimidation, when those sentences, contrary to what appeared in the body of the appellant’s criminal record, had been reduced on appeal to a total of 4 months and 17 days’ imprisonment as was recorded in the additional notes to the criminal record.  Mr Leung therefore argues that the magistrate was misled into believing that the criminality of the appellant’s previous offences was worse than it actually was and perhaps then adopted a higher sentence than she otherwise would have done.

6. In regard to the appellant’s previous convictions, the magistrate said :

“14.     The appellant has 29 previous convictions for a wide variety of offences, including common assault, fighting in a public place, obstructing a police officer, resisting arrest, reckless driving, failing to stop in case of an accident, overcharging, using a vehicle with marked oil, claiming to be member of a triad society (12 months imprisonment), and criminal intimidation (2 months).”

7. But although the magistrate mentioned the appellant’s previous, and very poor, criminal record in some detail, it is clear that the only use she made of it was to negate any reduction of sentence for good character.  She did not in any way use it as an aggravating factor.

8. For that reason, regardless of any misapprehension the magistrate may have had as to the level of sentence imposed upon the appellant for the offences of claiming to be a member of a triad society and criminal intimidation, that misapprehension in no way affected the sentence she imposed on the appellant for the present offence.  That is because, even if the magistrate had been properly aware of the sentences for those previous offences having been reduced on appeal, the criminal record of the appellant would still have been such as to prevent any discount on the basis of good character being granted to him.  There is no substance in this first complaint.

9. Mr Leung further argues that the magistrate put too much weight on the nature of the queue jumping by the appellant which provoked the incident.

10. In that regard, the magistrate said :

“16.  Although queue jumping is not an offence, it is anti-social behaviour likely to provoke bad feelings, and it is not unexpected if a fellow traveller had told the appellant to join the queue.  That the appellant had reacted with physical violence, using his mobile phone as a weapon, cannot be tolerated. …”

11. I do not think that the magistrate in saying this was doing any more than putting the appellant’s assault on PW1 in perspective.  She did not regard the fact of the appellant’s queue jumping as an aggravating factor as Mr Leung submits, but merely comments that the use of violence by the appellant against a passenger who understandably complained of his queue jumping was unacceptable.  There is no merit to this complaint.

12. The final complaint of the appellant is that the sentence was manifestly excessive.  In support of this contention, Mr Leung has provided me with a number of authorities which reflect lesser sentences being imposed on offenders for what on the face of those cases facts appear to be more serious assaults.  I do not gain much assistance from those cases as each case depends largely on its own facts.  But I do agree with Mr Leung that on the facts of the present case 3 months’ imprisonment seems excessive.

13. The injuries suffered by PW1 were wholly minor.  He received minor abrasions to his hand, foot and to his neck, and a bruise near the left eye.  No permanent injury was suffered and PW1 had been immediately discharged from Prince of Wales Hospital after his abrasions were dressed.

14. In my judgment, a sentence of 6 weeks’ imprisonment was appropriate to the facts of the case and I accordingly order that the appellant’s sentence of 3 months’ imprisonment be set aside and substituted with a sentence of 6 weeks’ imprisonment.