HKSAR v. Li Kwong Lam

HCMA 99/2018

[2018] HKCFI 1397

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 99 OF 2018

(ON APPEAL FROM ESCC 1191 OF 2017)

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JUDGMENT

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1.This is an appeal against sentence. The Appellant pleaded guilty in the Magistrates’ Court to a charge of assault occasioning actual bodily harm. He complains that the sentence of 6 months’ imprisonment passed upon him is too severe.

2.As to the circumstances of the offence and the injuries to the victim, the Magistrate said this in her Statement of Findings:

“ Facts admitted by the Appellant disclosed he and the victim, male Tse Pak-Chuen aged 56 years and referred to as PW1 on the ‘Brief facts’ were not acquainted with each other. Shortly before 1515 hours on 19^th April, 2017, at the sitting out area outside 4-16 Hill Road, Western, Hong Kong, PW1 was playing a game on his mobile phone while the Appellant was drinking alcohol. The Appellant said that PW1 was blocking his way and a dispute ensued between them. In the heat of theargument, the Appellant used a Chinese wine glass bottle to hit at PW1’s head—PW1 warded off the blow with his hand and sustained injuries on his left hand. PW1 pushed the Appellantaway. The Appellant tried to assault PW1 again with the glassbottle but was subdued by PW1 pushing the Appellant onto theground. In the course of being subdued by PW1, the Appellantdropped the Chinese wine glass bottle onto the ground and it wasbroken (Exhibit 3 on the ‘Brief Facts’). A report was made tothe police, and the Appellant arrested on police arrival. Undercaution, he remained silent. Both PW1 and the Appellant were conveyed to the Queen Mary Hospital. The medical findings for PW1 was bruising and swelling on his left hand, while that for the Appellant was abrasion and swelling on neck and face. Both were treated and discharged on the same day. I was satisfied beyond all reasonable doubt that the injuries sustained by PW1 amount to actual bodily harm.”

3.The Magistrate adopted a starting point of 9 months’ imprisonment and gave the Appellant a one-third discount for his guilty plea to arrive at the sentence of 6 months’ imprisonment which she passed on him.

4.The mitigation which had been put forward on the Appellant’s behalf is summarized as follows in the Magistrate’s Statement of Findings:

“ In mitigation Counsel submitted that the Appellant was aged 74 years and single, and received public assistance of $8,000 a month. He was homeless and under the influence of alcohol at the material time. The Appellant would quit drinking. The injury sustained by PW1 was not serious, and the Appellant sought leniency.”

5.As to the Appellant’s criminal record, this is what the Magistrate said:

“ The Appellant’s criminal record dates back to 1971 and he has 46 previous convictions in 31 court appearances, of which 13 were related to violence, of which 7 were for offences of assault occasioning actual bodily harm and 3 were for offences of common assault. His most recent convictions were on 24 October, 2015, for 1 count of assault occasioning actual bodily harm and 2 counts of common assault.”

6.The Magistrate then said this about the circumstances of the offence:

“ The Appellant assaulted someone with a glass bottle to his head. It is only by the greatest good fortune that the victim was not more seriously injured as he was able to ward off the blow to his head and sustained injury to his hand and he was able to subdue the Appellant. The glass bottle that the Appellant had used was broken when it fell to the ground as the Appellant was being subdued.”

7.The Magistrate noted that the maximum penalty for this offence is 2 years’ imprisonment in the Magistrates’ Court, and she considered the decision of the Court of Appeal in HKSAR v Chan Chun-tat CACC 317/2012.

8.In the last three paragraphs of her Statement of Findings the Magistrate says as follows:

“ 10. Save for his plea of guilty, there was little mitigation of weight before me. Here, the Appellant acted alone. The Appellant had had an argument with the victim prior to assaulting him with the glass bottle, which subsequently broke. The assault was to the head of PW1, but PW1 was able to ward off the blow, and sustained injuries to his left hand. The Appellant tried to assault PW1 on his head again, but PW1 wasable to subdue him. I bore in mind the fact that the Appellant acted alone and the weapon used, namely the glass bottle, while not a lethal weapon like other weapons such as knives or choppers, could inflict substantial injury when used. PW1 was able to ward off the first blow to his head by the Appellant using the glass bottle so that the blow landed on his hand resulting in injuries to his hand amounting to actual bodily harm,and the Appellant continued to try to assault PW1 on his head with the glass bottle but was subdued by PW1. It was only by the greatest good fortune that PW1 was not more seriously injured. In mitigation I was told that the Appellant was under the influence of alcohol at the material time. The influence of alcohol in the commission of an offence is not in general a reason for reducing a sentence. In R. v. Liu Ping-kin, [1993] 2 HKC 192, 195, Penlington JA said the accused ‘apparently has a problem with alcohol but we do not consider that as a mitigating factor’. Although the Appellant was 74 years old, I did not view that as an age so advanced as to warrant a reduction in sentence by virtue of his age.

11. This was not the Appellant’s first offence involving violence. Clearly an immediate custodial sentence was called for and deterrence borne in mind. I took as a starting point 9 months’ imprisonment, and reduced this by one-third to reflect his plea, sentencing him to 6 months’ imprisonment.

12. On reflection, I do not consider that a lesser sentence could properly be imposed.”

9.While one might well have some sympathy for the Appellant, there is no proper basis for interfering with this sentence.

10.Accordingly, this appeal against sentence is dismissed.

Mr Prakash L Daryanani, SPP of the Department of Justice, for the Respondent

The Appellant appeared in person