HKSAR v. Le Gat Richard Gerald Franck

HCMA 655/2017

[2018] HKCFI 1291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 655 OF 2017

(ON APPEAL FROM ESCC 1741 OF 2017)

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JUDGMENT

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1.The Appellant was convicted after trial in the Magistrates’ Court on a charge of assault occasioning actual bodily harm. He was sentenced to 4 months’ imprisonment. He appeals against that sentence on the ground that in all the circumstances it was manifestly excessive and/or wrong in principle.

2.The relationship between the Appellant and the victim, the circumstances of the offence and the injuries to the victim are set out as follows in the Magistrate’s Reasons for Sentence:

“ 2. The victim was a woman called Cheung. The Defendant had a sexual and intimate relationship with Cheung for about 2 months before the incident. Cheung regarded the Defendant to be her boy-friend.

3. In the evening before the material day, the Defendant and Cheung originally had an appointment, but the Defendant did not turn up. Cheung had been waiting for him for about 4 hours.

4. At about 1:20 a.m. on 11^th March 2017, the Defendant went back to his flat with another girl called Thitima. He then found Cheung outside his flat. The Defendant and Cheung entered the flat without Thitima. After a quarrel, Cheung was agitated and slashed her left arm with a paper cutter. Subsequently, the Defendant said that Thitima was waiting for him. He opened the door, but Thitima was no longer there.

5. The prosecution evidence is that at that time he pushed Cheung away and assaulted Cheung. The Defendant slapped her face. She fell on the ground, and the Defendant continued to assault her. About half of her body was inside the flat while the other half of her body was outside the flat. She held the door frame to try to stand up, and the Defendant used the door to pinch her fingers on it. She told him to stop, but he said he did not care. I found these facts to be the facts of this case.

6. The defence evidence is that all the injuries sustained by Cheung (except her slashed left arm) were caused by the Defendant trying to prevent her from throwing herself out of the window and struggling with Cheung while ejecting her out of the flat. It is submitted for the Defendant that they were done accidentally but not deliberately. I do not accept this evidence to be true and correct.

7. Although Cheung could not recount all the details of the assault, the photographs showing her injuries in Exhibit P3 support her evidence and rebut the defence evidence.

8. As appears from the Medical Report (Exhibit P2), it is common ground that Dr Hon Siu Kei Sam of Ruttonjee and Tang Siu Kin Hospitals found Cheung to have as follows:

(a) Multiple bruises of anterior chest wall, left upper arm, both hands, left knee and right skin;

(b) Swelling in both hands and fingers;

(c) Tenderness at low back; and

(d) Left forearm laceration.

Those injuries are apparent from the photographs.  They show that the assault on Cheung is not a one-off incident and resulted in extensive injuries on various parts of her body.  The Defendant has a strong physique.  I have no doubt that Cheung could not defend herself during the assault.”

3.The Magistrate then said this:

“ 9. The Defendant has a clear record in Hong Kong. During mitigation, it is submitted on his behalf that he is willing toperform community service. Since the Defendant was not permanently [sic] resident in Hong Kong it was unlikely that a Community Service Order (‘CSO’) would be recommended. Nevertheless, I ordered a CSO report.

10. As expected, the CSO report does not recommend a CSO Order.  It sets out the Defendant’s background.  He was born in France and is aged 29.  He has been trained as a chef and came to Hong Kong in January 2017.  He worked as a chef in a restaurant in Central.”

4.Although the reporting officer did not recommend community service, she did say a number of things favourable to the Appellant.  The following appears under the heading “Other Remarks” in her report:

“ Defendant was born in France and was the only child of his parents. His father worked as a Wine Steward while his mother worked as a Manager in Bank of France. Defendant’sfather passed away in a car accident when he was four years old. He recalled that he was entrusted to the care of neighbor in the daytime when his mother was occupied by work. Despite so, Defendant revealed that he received adequate care and supervision by his mother. Defendant completed his college studies in 2004 at Stephane Mallarme in France then he obtained the Vocational Certificate of Kitchen and Graphic Design in 2006 and 2008 respectively. In 2010, Defendant obtained the Bacalaureat Certificate in Graphic Design. He reported that his academic performance was considered to be satisfactory.

Defendant joined the workforce in 2010 after graduation. He took up some part-time jobs in the first year then he worked as a Manager at Domino Pizza in Bordeaua of France for two years. Since 2014, Defendant travelled to different countries by Working Holiday Visa and Tourist Visa. He travelled in Asia for six months, worked in Paris, Sydney and Australia. Defendant arrived Hong Kong by Working Holiday Visa on 24.1.2017. He started working as a Chef and [sic] Partie at a restaurant in Central, namely, ‘Fish & Meat’ with $19,000 monthly salary.

Defendant acquainted with his cohabitant, a Thai, in March 2017 through dating apps in Hong Kong. He presently lived with his cohabitant, cohabitant’s nine years old daughter, mother and a domestic helper at the reported rented abode. Relationship with his cohabitant and family members of his cohabitant was satisfactory. Defendant and his cohabitant planned to get married in 2018. The cohabitant was interviewed during home visit, she highlighted that Defendant was all along a gentle person and behaved within bound. She had never seen that Defendant presented any violent behavior despite the present offence. She also revealed that Defendant had no vice habits such as drinking, smoking, gambling or abusing dangerous drug. In confirmation with the Criminal Record Bureau, Defendant was a fresh offender. The cohabitant implored Your Worship’s leniency in this case.

Defendant was frank and cooperative during the social enquiry.  Defendant admitted that he committed the present offence.  He supplemented that the victim refused to separate from him despite he repeatedly told her to break up.  On the material day, the victim waited Defendant outside his rented abode and wanted to ask for reconciliation.  Defendant told her to leave.  During the heat, Defendant saw the victim slashed her forearm by the cutter she prepared.  Out of impulsiveness,Defendant committed the present offence. To show his repentance, he was willing to bear the legal responsibility by doing unpaid community work as reparation to society.  Yet, Defendant also understood that his Working Holiday Visa would be expired on 30.1.2018.  He has practical difficulty in performing unpaid work under Community Service Order. In any case, Defendant begged Your Worship for a lenient and non-custodial sentence on his case.”

5.What the Magistrate said in his Reasons for Sentence about that part of the report is this:

“11. In the CSO report, the Defendant alleged that Cheung refused to separate from him notwithstanding that he asked her to break up. I find this to be inconsistent with the Whatsapp messages in Exhibit P6. On the day before the incident, he and Cheung still chatted intimately by Whatsapp. Further, it is not disputed they still had sexual intercourse in the morning on that day. Cheung’s personal belongingswere still in his flat during the assault. I do not see a clean break of their relationship before the incident.

12. It is alleged that when the Defendant saw Cheung slashing her arm, he committed this offence out of impulsiveness. I do not accept it to be true. I take the view that when the Defendant did not find Thitima outside his flat, he vented his spleen on Cheung by assaulting her in a brutal and sustained manner as he did. Even though the Defendant might be shocked by her act, I do not see any reason or motive for him to assault her in this manner simply for whatshe did to herself. If he were concerned about Cheung, heought to have called the ambulance or the police (which he did not do).

13. What the Defendant did after the incident is consistent with what he did earlier in his own flat.  He left Cheung alone and went to look for Thitima.”

6.Having said that, the Magistrate went on to say this:

“14. The maximum sentence for AOABH [assault occasioning actual bodily harm] is 3 years’ imprisonment. There is notariff for this offence. Each case depends on its own facts and the background of its defendant.

15. The present offence is serious because of the substantive disparity between the strength of Cheung and the Defendant,the brutal and sustained manner of the assault and the extensive and serious injuries suffered by Cheung. In particular, the assault continued after Cheung fell on the door, and the force by which her fingers were pinched on the door frame should not be small.

16. This does not represent an impulsive reaction to Cheung’s act or care and concern for her.

17. In HKSAR v Mo Hiu Fung [2013] HKCU 2864, the appellant was convicted of rape after trial. Upon his plea,he was also convicted of two charges of AOABH in respect of which the trial judge sentenced him to 12 months’ imprisonment on each charge which ran concurrently with the other one. The starting point of each of the AOABH charge is therefore 18 months. The appellant appealed against the sentence.

18. The appellant had 2 previous similar convictions, namely one offence of common assault and one offence of AOABH. There was an intimate relationship between the female victim and him, but she wished to end this relationship. The appellant lured her to an isolated and remote place. In respect of the 1^st AOABH charge, he punched her repeatedly on her back and back, and he sat on her chest and strangled her with both hands. In respect of the 2^ndAOABH charge, he used the victim’s mobile phone to hit her about the head and face.

19. The Court of Appeal did not see any merit to interfere with the [trial judge’s] sentence in respect of the two charges. It took the view that the 1^st charge was a very serious offence of its kind and called for a sentence of at least 2 years’ imprisonment. The sentence in the present case falls into the lower end of this range.

20. I do not see any special circumstances justifying the sentence to be suspended.

21. In the present case, taking into account all the facts and circumstances of this case, I do not find the sentence to be harsh.”

7.What the Magistrate said when passing sentence was this:

“ I have considered the mitigation case of the defendant’s counsel.

The victim had a turbulent sexual relationship for the defendant -- with the defendant for a few weeks before the assault. She regarded the defendant as her boyfriend. The assault took place after she found -- that defendant found his Thai girlfriend was no longer at the entrance of his premises.

Defendant has a clear record. He may not live in Hong Kong again. Nevertheless, the court has to consider the seriousness of the injuries suffered by the victim, as clearly shown in the photographs.

The defendant is imprisoned for four months.”

8.Counsel for the Appellant contends that the sentence of imprisonment passed on the Appellant should be suspended.  The arguments advanced in support of that contention are, as set out in the “Appellant’s Written Argument Against Sentence” which counsel for the Appellant adopted and expanded upon in his oral arguments, along the following lines.  There were circumstances that could be considered exceptional, namely the action of the victim slashing her arm inside the Appellant’s flat.  It is also arguable that the fact that the Appellant was ineligible for community service due only to his residency status was also exceptional as in HKSAR v Lacroix [2010] 2 HKC 327 in which the sentence was suspended.  Further the domestic nature of this incident calls for some leniency as was shown in HKSAR v Lee Hon-yung, HCMA 69/2000 (5 October 2000).

9.I do not regard the fact that the victim had slashed her own arm as a factor in the Appellant’s favour.  It would have been to his credit if he had acted to prevent further harm coming to her, but her having already harmed herself does not make it less serious for him to harm her.

10.It is not to be assumed that community service would have been appropriate but for the Appellant’s residency status.  Nor does HKSAR v Lacroix assist the Appellant.  In that case, McMahon J (as he then was) said this at p 329:

“ There is no principle in our law that I am aware of which wouldrequire that, in the event of an offender not being recommended for probation because he may have to leave Hong Kong, no sentence of imprisonment whether suspended or otherwise should be substituted.”

There is indeed no such principle, and that is so in relation to community service as well as in relation to probation.  The fact that the sentence in HKSAR v Lacroix happens to have been suspended does not assist the Appellant, the charge in that case having been of simple possession of 1.57 grammes of cocaine and the plea having been one of guilty.

11.The offence in HKSAR v Lee Hon-yung was of unlawful wounding.  What had happened was that in the course of a row at a drinking party at a discotheque, one of the persons at the party threw a glassat another person at the party.  The glass shattered causing three lacerations to the victim’s face, requiring nine stitches.  The relevant passage in Deputy Judge To’s judgment is one in which he said this:

“ Glassing in bars is the sort of conduct which ought firmly to be deterred. However, I cannot lose sight of the fact that the incident arose spontaneously and more importantly, that it aroseout of a ‘domestic’ setting. The spontaneous dispute betweenfriends has to be distinguished from the usual circumstances of wounding as a result of exchanging stares from strangers from a neighbouring table. The latter has a strong public element calling for deterrence; whereas the ‘domestic’ setting in which the present case arose does allow some room for leniency.”

That is not a statement to the effect that domestic violence is to be considered less than serious.  It is generally serious and sometimes very serious indeed. 

12.Despite the arguments ably advanced on the Appellant’s behalf, I find no proper basis on which to say that the Magistrate was not justified in passing an immediate custodial sentence of 4 months’ imprisonment.  I do not consider the sentence manifestly excessive or wrong in principle.

13.Accordingly, this appeal against sentence is dismissed.

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

Mr Trevor Beel, instructed by Director of Legal Aid, for the Appellant