HKSAR v. CHAU YIU MING

HCMA 240/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 240 OF 2006

(ON APPEAL FROM ESCC 733/2006)

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Dates of Hearing: 17 May 2006 & 1 June 2006

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J U D G M E N T

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1.  The Appellant has pleaded guilty to the offence of “behaving in a disorderly manner in a public place”.

2.  The learned Magistrate considered the Appellant's sentence of imprisonment was necessary, despite the fact that in the past he had for similar offences called for pre-sentencing reports.  In this case, he did not do so, although he said he was aware that the reports would most likely recommend a Community Service Order, he felt that this type of offence was becoming prevalent and the only deterrent would be a custodial sentence and so the learned Magistrate adopted a starting point of 3 months imprisonment and sentenced the accused to 2 months' imprisonment and having considered whether there were special circumstances warranting a suspended sentence, he found there were none, so he sent the Appellant to prison for 2 months.  The Appellant appealed against that sentence on the ground that it was manifestly excessive and that it was wrong in principle, in that the learned Magistrate should not have imposed an immediate sentence of imprisonment to act as a deterrent “in rem” without having regard to the individual and personal circumstances of the Appellant.

3.  The Appellant has a clear record.  The facts were, that the Appellant was going up on an escalator and he was seen holding a camera which he extended away from him.  He was standing in a strange position and the witness thought he might be taking a photograph of the victim who was standing on the step above him.  So the witness tapped the victim on the shoulder and informed her about it.  There was a short chase and subsequently the Appellant was caught.

4.  The Appellant was arrested and cautioned and he did not say anything and subsequently when a further cautioned statement was taken from him, he explained that he did not know what happened when he was chased. 

5.  Ms Sujanani submitted to the court that compared to the other cases previously, the learned Magistrate had taken a more severe attitude to the present offence.

6.  Ms Sujanani also sought leave to adduce fresh medical evidence in relation to the Appellant.  Leave was granted and it showed that the Appellant suffered from epileptic convulsion and had failed to inform the court in his mitigation because he felt that it was a personal matter and not relevant.

7.  Ms Sujanani said that the learned Magistrate was wrong to impose a deterrent sentence “in rem” in this particular offence and in view of the Appellant's background.  Ms Sujanani submitted that this court should call for a probation report which this court acceded to.  The probation officer's report said that the Appellant did complete his secondary education and then he went on to do a diploma course in commerce.  He had a rather hard-working life after leaving school.  He was promoted to be a restaurant manager in 2004 and in 2006 he was again promoted to be an assistant training officer. 

8.  The Appellant in the past had shown no previous bad habits.  In fact when he was studying he also engaged in part-time work.  Home visit conducted by the probation officer showed that he had a very supportive family.  He is said to be a responsible and hard-working person and, in particular, the Appellant's wife thought that the present offence arose out of the stress he was suffering from at the time.  He was said to be a filial son. Despite his health, the Appellant had always worked hard to support his family.

9.  The probation officer's opinion in view of the fact that the Appellant had a very stable lifestyle, a very supportive wife, a promising job and a clear record, is that the Appellant's chance of re-offending is not high and therefore probationary supervision is not recommended.  The probation officer, and I note here that he is an experienced probation officer, recommended a Community Service Order for this particular Appellant.

10.  First of all, I must say this, that the learned Magistrate is correct in saying that in this type of cases are becoming more prevalent particularly those committed on escalators on young victims.  In some cases, I am sure a deterrent sentence “in rem” is appropriate.  But here, in this case, the Appellant has an exemplary background and it is obvious that this offence is completely out of character and as the probation officer, who has interviewed the Appellant opined it is unlikely that he will re-offend.  The Appellant has a stable job and has a stable family life.  Therefore in this case, I feel that the Appellant should be given a chance.  There is no evidence that the Appellant actually succeeded in taking any pictures.  So considering the Appellant's background, the performance of community service should deter him from re-offending in the future.  It serves as a constant reminder during 160 hours there that he should not re-offend.

11.  So, in this particular case and in these particular circumstances, I feel that this court should out of mercy offer the Appellant a chance.  So I am going to accede to the recommendation of the probation officer and sentence the Appellant to 160 hours of community service.  I am told by Ms Sujanani that the Appellant has agreed to perform the service.

12.  The appeal is therefore allowed, the original imprisonment is set aside and the Appellant is hereby ordered to perform 160 hours of community service.