HKSAR v. SINGH GURIAR

HCMA 641/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 641 OF 2008

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J U D G M E N T

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1.  The appellant was convicted after trial of a single charge of criminal damage: he was acquitted, for reasons which may best be categorised as obscure, of two other charges of assaulting and resisting police officers in the course of their respective duties.  He was sentenced to serve a period of 12 months imprisonment which, on review, was reduced to 10 months imprisonment plus a compensation order of $1,500.00: it appears that the appellant initially refused to pay compensation but by the time of the review he both admitted having committed the offence and offered to pay compensation.  The magistrate regarded what on the face of it appear to be tactical concessions as remorse.

2.  It seems that the police went to the appellant's home some 30 hours earlier in response to a noise complaint.  From there he was taken to Ma On Shan police station.  He was in lawful custody.  He was put in a cell.  In the cell was a toilet bowl.  The appellant destroyed the toilet bowl by kicking it.  The evidence of the police was that the appellant did this because he had been refused a cigarette: he had also threatened to cause further damage to the cell.

3.  The magistrate took the view that the appellant's conduct "... was a blatant challenge to law and order."  The magistrate also described the events as "... a very serious case of criminal damage."  With respect, I do not agree.  A broken latrine is hardly likely to undermine law and order.  The threats to cause further damage have no relevance to the sentence imposed in respect of the offence for which the appellant was convicted.

4.  The appellant has a string of previous convictions involving conduct of some degree of violence towards persons and property.  Each sentence, however, shows that the facts of the offence must have been comparatively minor.  He seems to have a particularly aggressive attitude towards authority, especially the police. The magistrate acquitted him of the two charges involving violence towards police officers either of which would have justified a substantial period of imprisonment. Indeed, had he been convicted of all three offences an overall sentence of the order of 12 months imprisonment would have been appropriate.

5.  Conversely, two points to the appellant’s detriment to which the magistrate made no reference are, first, that this offence occurred some four weeks after the previous conviction for criminal damage and, secondly, that at the time of the commission of this offence the appellant was subject to an order binding him over to be of good behaviour.

6.  The appropriate sentence, in my judgment, after trial would have been imprisonment for a period of three months. Consequently, the appeal succeeds, the sentence of 10 months imprisonment is set aside and a period of 3 months imprisonment substituted. The Magistrate’s order regarding compensation is confirmed.