HKSAR v. LI WAI KIN

HCMA 726/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 726 OF 2001

(ON APPEAL FROM SPC 3319/2001)

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J U D G M E N T

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1. On 5 June this year the appellant pleaded guilty at San Po Kong Magistracy to an offence of assault occasioning actual bodily harm committed on 1 June and he was sentenced to serve one month in prison.

2. He appealed against that sentence initially upon the standard ground that it was too severe. On 31 August I allowed his appeal to the extent that I set aside the immediate custodial term and suspended it for a period of 9 months. These are my reasons.

3. Mr Dinan of counsel who appeared for the appellant in the appeal formulated the following perfected grounds of appeal:-

"1. The Learned Magistrate erred in that he failed to give any or any sufficient weight to the various mitigating circumstance put before the court.

2. The Learned Magistrate erred in that he failed to give any or any adequate consideration to the calling for background reports before sentencing the appellant to a term of imprisonment.

3. The Learned Magistrate erred in that he failed to give any or any adequate consideration to the calling for Community Service Reports before sentencing the appellant to a term of imprisonment.

4. An immediate custodial sentence in view of the aforesaid was wrong in all the circumstances."

4. In his reasons for sentence the learned Magistrate said, inter alia, the following:-

"(1) The appellant admitted the prosecution's summary of facts of the case. Therein he admitted to arguing with the victim in this case, who was a driving instructor sitting beside a learner driver, over the appellant's manner of driving. The appellant had opened the passenger door and hit the victim's head and neck with his fists whilst the victim was seated in his vehicle. The victim suffered swelling and abrasion over the left side of his face and mild conjunctional haemorrhage over both eyes. Whilst under caution the appellant had claimed the victim had hit him first, this was retracted by counsel upon questions by me.

(2) The appellant had one prior conviction for attempted theft.

(3) It was submitted ... ... that the appellant had not appreciated the serious consequences of his actions and was willing to pay compensation.

(4) I took a serious view of the offence. The appellant was not an immature youth but a married man aged 28. The victim in this case could almost be considered an elderly man, being 59 years old. This was not a case of 2 men angrily standing up to one another and then one of them losing momentary control. The appellant had opened the passenger door and struck the victim whilst the latter was seated. From the injuries it was apparent that more than one blow had been struck. In my view it was a serious instance of "road rage" and merited a deterrent sentence. I took 3 months imprisonment as the starting point. Bearing in mind (1) his guilty plea and (2) the fact this was his first offence of violence, I believed a term of one month's imprisonment was appropriate.

(5) The appellant, ... ... applied to review the sentence ... ... It was submitted that his wife was seriously ill, suffering from nasal cancer with a tumour on her neck. [The appellant's] imprisonment might cause a deterioration in her condition. The appellant would lose his job if imprisoned.

(6) I adjourned the review to enable the appellant to submit medical evidence on his wife's illness. He was allowed bail in view of the short duration of the term imposed but warned that an immediate custodial sentence remained a possible outcome.

(7) On the 21st June 2001 ... ... I was advised that his wife's condition was not at the present time life-threatening. Nevertheless her condition was on his mind at the time of the offence and the stress, knowledge thereof placed him under, may have caused him to act in the out-of-character way he had behaved. I was urged to consider a community service order.

(8) I was still of the view that the circumstances of the offence were sufficiently serious as to warrant an immediate custodial sentence. Whilst any wife would be anguished by the imprisonment of her spouse, the term was not of such duration and her condition not of such immediate gravity as to persuade me that the sentence I imposed would of itself cause a deterioration in her medical condition. Whilst accepting the appellant was under stress at the time of the offence, this did not excuse a mature adult's use of violence against a man much older than himself. Accordingly I dismissed the review."

5. It is plain that the learned magistrate was of the view that this offence merited an immediate term of imprisonment and nothing else - if only as a deterrent to others. That is why he did not call for a background or community service suitability report. In those circumstances he was not obliged to do so although, it seems to me, that a background report might have been helpful to him in determining the appropriate length of sentence and it might possibly have reinforced the mitigation advanced in favour of a suspended term of imprisonment or some other realistic disposal.

6. That mitigation (apart from his early plea of guilty and the fact that his conduct on 1 June was apparently completely out of character) concerned his wife, his 7 year old child and his employment. It was plain that if an immediate sentence of imprisonment was imposed the appellant would lose the employment which he had held for more than 7 years. It was also plain that the appellant's wife, who is unquestionably gravely ill and about whom the appellant is extremely concerned, was a passenger in his car on the 1 June when this altercation occurred and that must have been a factor which contributed to his conduct.

7. As to the last sentence of paragraph (1) of the learned magistrate's reasons for sentence (above) a reading of the transcript reveals that such a claim was not in fact retracted. It was repeated more than once; it being the appellant's case that when the 'victim' had tried to pull his vehicle door closed it had struck the appellant on the head causing him (the appellant) to become more agitated.

8. Insofar as that matter is concerned Mr Dinan says that it provided an element of accidental provocation which the learned magistrate should have taken into account in determining the appropriate sentence and which (because of his apparent misunderstanding of what was being said) he failed to consider.

9. On the facts of the case, as admitted by the appellant, the learned magistrate was entitled to take the view that the offence merited a sentence of imprisonment if only as a deterrent to others. However, in my view, he failed to consider fully the consequences of an immediate custodial term which would have been potentially disastrous for the appellant and his family for reasons which, I think, are quite apparent. I am in no doubt that there were exceptional circumstances in this case justifying the suspension of the sentence.

10. It is for these reasons that I allowed the appeal to the extent to which I did allow it.