Attorney General v. David John Chequer

CAAR000018/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

APPLICATION FOR REVIEW NO. 18 OF 1974

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Coram: Briggs, C.J. Huggins & McMullin, JJ.

Date of Judgment: 15th January 1975

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JUDGMENT

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1. This is an application for the review of a sentence passed by a magistrate on the respondent on December 11th, 1974. The respondent was found guilty of wounding contrary to section 19 of the Offences against the Person Ordinance and was discharged conditionally upon his entering into a recognizance in the sum of $500, to be of good behaviour and to appear for sentence when called upon at any time within two years.

2. The respondent holds the rank of Warrant Officer, Class I at the 50 Command Workshops. On September 20th, 1974 at approximately 2 a.m. he took a taxi from a certain bar to his quarters. Upon arrival in the road outside he found that he had not enough money to pay for the fare.

3. Two versions of what then occurred were put before the court. The taxi driver, who is the complainant, stated that he asked for the fare and when it was not forthcoming he suggested that he should accompany the respondent to his quarters to collect it. The respondent wished the driver to collect the fare from the bar where he had engaged the taxi on the following day. The respondent then alighted and so did the driver who thought that the respondent was evading payment. Thereupon the respondent hit the driver in the chin, fracturing it in two places. The respondent then made off.

4. The respondent's version was different. He said that though he had been drinking and was under the influence of alcohol he was not drunk. He said that when he found he had insufficient money for the fare he tried to explain to the driver that he would pay him on the following day. It seemed to the respondent that the taxi driver could not properly understand him owing to the language difficulty. He was unwilling that the matter should come to the ears of his superior so he decided to leave. The driver followed him and grabbed him by the arm and then held him from his back. In order to free himself from the driver the respondent hit him once on the chin and then made off.

5. The taxi driver was taken into the flat of a staff sergeant who lived in the vicinity and given first aid. The police were called. And eventually the respondent made a statement to the military authorities. Though he admitted that he was not wholly frank with them, he said that the evidence which he gave in court was the whole truth.

6. There can be no doubt that the blow inflicted on the taxi driver was a severe blow. And that the charge of wounding was made out is perfectly clear.

7. Various matters were urged in mitigation of the offence. The respondent is 36 and has served in the Army for 20 years. He is married with two children. It appears that before this incident he had been slacking off in his duties and was drinking too much. We were told that the incident had made him pull himself together.

8. This may well be so but taxi drivers particularly need to be protected from incidents such as this. And we think that the magistrate over-emphasized the matters put before him by way of mitigation.

9. We think that the sentence imposed by the magistrate is manifestly inadequate. A proper sentence at the time of the trial would have been a suspended sentence of imprisonment for six months.

10. We were told that the taxi driver has instituted civil proceedings against the respondent in the District Court so we do not consider this an appropriate case in which to make an order for compensation. Nor do we think that we should pass a custodial sentence at this time. We are not certain what effect such a sentence, or indeed any sentence would have on his career in the Forces.

11. In all the circumstances we think that justice will best be done if the sentence passed by the magistrate be set aside and that the respondent be ordered to pay a fine of five thousand dollars. We make this order under the provisions of section 58 of the Offences against the Person Ordinance. The bond is discharged. The respondent must pay the fine within one week from to-day.

Representation:

Lucas, D.D.P.P. for Crown/Applicant.

Murray, Army Legal Officer, for Respondent.