HKSAR v. LEUNG SAU KUEN

HCMA959/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.959 OF 2002

(ON APPEAL FROM NKCC 5807 OF 2002)

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J U D G M E N T

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1) The appellant pleaded guilty to an offence of common assault before the learned magistrate on 16 September 2002. The particulars alleged that :

"On the 29th day of August, 2002 inside cell no.16, 2 Floor, Block G, Lai Chi Kok Reception Centre, 5 Butterfly Valley Road, Kowloon, in Hong Kong, you assaulted one Chinese male Wong Kwok-ping."

2) The admitted facts disclosed that the appellant was a detainee in Lai Chi Kok Centre. On the material day, the appellant had made certain request to PW1, a Correctional Service Department officer, regarding the arrangement of the meat and vegetable in his meal box. When his request was turned down, the appellant struck the container causing it to fall and he also splashed hot tea onto PW1's chest. Mild redness was found over PW1's chest area as a result.

3) The learned magistrate was told that the appellant had one previous conviction involving violence. Having heard mitigation from duty lawyer, the magistrate imposed a term of two months. He had adopted three months as the starting point and then granted the usual 1/3 reduction for the guilty plea.

4) The appellant now argued before this court that the sentence was too severe. According to his written submission, he had committed the offence in a fit of temper. But he said that throwing tea at officers happened quite frequently inside the remand centre and usually such conduct would only be dealt with internally. He felt aggrieved because, in his case, he was sentenced by the court as well as being placed in the isolation cell as a punishment. He said he was deprived of his right to attend normal activities in the center and could not communicate with other inmates. The appellant said he believed that the magistrate was not aware of this situation at the time of sentence so he asked for a reduction of sentence from this court.

5) I must say I am quite alarmed that, according to the appellant, there are many similar incidents of throwing tea at officers in the remand centre. However, if that is indeed the case, it would fortify my impression that the present sentence of two months is in fact too low and a deterrence sentence would be much needed in order to curb such unacceptable behaviour.

6) Whether the appellant should be remanded in isolation is a matter for the Commissioner. I am not convinced that because of the disciplinary treatment, this court should further reduce what appears to be already a lenient sentence of two months.

7) In fact, it did occur to me that the term should really be increased, but considering the circumstances, I would not disturb the sentence. This appeal is dismissed.