THE QUEEN v. CHAN YU KWONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 125 OF 1990

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BETWEEN

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JUDGMENT

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1. The appellant was convicted after trial by Mr R. Venning on a charge of common assault. He was sentenced to 3 months' imprisonment and ordered to pay compensation to the victim of $1,500. I am told that the compensation order was complied with immediately. He now appeals against the term of imprisonment imposed.

2. The incident arose at Lo Wu Railway Station when the appellant and the complainant, a woman of over 60 years, were travelling to China. The appellant, who was aged 39, resides in Hong Kong, his wife and twin daughters live in China. The conditions at Lo Wu were very crowded and the appellant is said to have pushed the complainant who scolded him. He is said to have scolded her back and then punched tier on the nose and on the chest several times.

3. The Magistrate stated in his findings that after going through the turnstiles and following the first assault, the complainant was then kicked twice by the appellant. In his reaons for sentence, the Magistrate had this to say:-

"Appellant is a man of 39 years of age and was on his way to visit his wife and twin daughters who live in China. I was informed he is the sole breadwinner for them. He had a clear record and from the facts of the incident acted on impulse in the stressful conditions which usually exist for departing passengers at Lo Wu. I considered these matters to be mitigatory, but to fall short of reaching a point such as would enable me to deal with the matter by a penalty less than an immediate custodial sentence. This was because of the obvious age of the victim and that the attack did not end with the first punch to the nose."

4. From the notes of evidence, it seems that the assault took place on the first occasion that the appellant and the complainant came into contact, that they had then gone through the turnstiles, and that after that their contact was limited to verbal abuse. With respect the Magistrate seems, therefore, to have considered as an aggravating feature, something which did not, in fact, occur.

5. The medical report shows that the injuries sustained by the complainant were not serious. These were described as:-

6. The Magistrate was, right, however, to regard an assault on an elderly woman as being an aggravating feature and he was justified, in my judgment, in deciding that the facts of the case warranted an immediate custodial sentence. However, after having regard to the facts and to the mitigating factors which were referred to by the Magistrate, and to the minor nature of the injuries sustained, I am of the view that the 3 months' imprisonment was manifestly excessive. I, therefore, allow the appeal to the extent that 1 month's imprisonment is substituted for the 3 months' imprisonment imposed.