HKSAR v. Kahle Michael

HCMA 461/2021

[2022] HKCFI 207

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 461 OF 2021

(ON APPEAL FROM TMCC 1595 OF 2021)

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Before:  Hon Campbell-Moffat J in Court

Date of Hearing:  14 January 2022

Date of Judgment:  14 January 2022

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JUDGMENT

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Introduction

1.The appellant was charged with one count of Common Assault contrary to Common Law and punishable under s40 of the Offences against the Person Ordinance, Cap 212.  He pleaded guilty before Lily Wong, Acting Principal Magistrate (the “Magistrate”), on 25 August 2021 and was sentenced to a term of imprisonment of six days, with a suspended sentence under STCC 1148/2021 of four weeks for breach of condition of stay to be activated and to run consecutively to the sentence of the court for the common assault.  By his Notice of Appeal, dated 27 August 2021, the appellant appeals sentence on the basis that it was too severe.

2.It is to be noted that the appellant pleaded guilty on the first occasion he was brought before the court and that he did not wish to be legally represented.  The appellant did not appear before the Court upon Appeal as he has since been deported.  The Court nevertheless proceeded to hear the appeal as it was minded to allow it.

The Prosecution Case

3.The appellant pleaded guilty to assaulting Ko Ka-ying (PW1) at her residence on 23 August 2021. He is a German national and had first met PW1 in Germany in 2016.  They lived together for two years.  The relationship came to an end in 2018 and PW1 returned to Hong Kong.  In 2019, PW1 and the defendant met again, this time in Hong Kong.  The defendant cohabited with PW1 from that time onwards and was living with PW1 at the time of the offence.

4.At about 1700 hrs on 23 August 2021, the defendant returned home apparently drunk and asked to look at PW1’s phone.  She refused and an argument ensued in which the defendant pulled PW1’s feet.  In particular, he twisted PW1’s big toe which caused tenderness to her knee and toe.

Defence Case

5.As is his right, the appellant remained silent upon arrest and caution.  He also remained silent in interview.  Having been found guilty upon his own plea, he was asked whether he wished to say anything in mitigation but declined to so.

Grounds of Appeal Against Sentence

6.There were no Grounds of Appeal other than that provided upon Form 102, that the sentence was too severe.  There were no specific Grounds of Appeal against the activation of the suspended sentence.

Analysis

7.The appellant first appeared on 25 August 2021, which was just two days after the assault.  At that stage he declined to be legally represented and the Magistrate confirmed that was the case.  She went on to explain the procedure and confirmed once more whether the appellant wished to be represented.  She mentioned that he might wish to seek advice as to the maximum penalty but did not go so far as warning the appellant herself that the likely outcome was one of imprisonment.  I do not wish to criticise the Magistrate for that omission, but she indicated that she had dealt with domestic violence matters on a regular basis and would have known before the hearing the type of sentence which would follow a plea of guilty upon the facts.  Given that this was a foreign national from a civil law jurisdiction, it was highly unlikely that he was aware at this stage that he was at serious risk of going to prison.  As matters turned out, it was clear he did not realise.

8.It was at an early stage, and before the charge was put to him, that the appellant indicated that the incident was an accident.  Quite rightly, the magistrate queried this and explained that she could not accept a plea of guilty on that basis.  If that was his case, the Magistrate informed him that the matter would have to be adjourned for trial. The appellant’s reaction to that suggestion was to immediately offer to plead guilty as if his overwhelming desire was to have matters dealt with expeditiously.  Once more, and wholly appropriately, the Magistrate advised the appellant to take time to consider his position and she explained the offence of common assault.  She sought to adjourn the matter to enable the appellant to take advice in the face of the appellant insisting he wished to plead guilty. As a consequence, and with extreme patience, she stood the matter down for the appellant to consider his position.  Unfortunately, what the Magistrate did not do, and in all the circumstances of this case, she should in fairness have done, was to inform the appellant of his risk as to sentence.

9.After the luncheon adjournment, the Magistrate confirmed with the appellant that he did not wish to be legally represented and proceeded to put the charge, to which he pleaded guilty.  It would have been fairer to the appellant to understand the consequences of his plea, but there is no doubt he was otherwise advised properly and was given every opportunity to consider his plea.  Nevertheless, even at this stage, the appellant was clearly unaware of the possible sentence of the Court such that when the Court asked him if he wished to say anything in mitigation, he answered “no”.  As mentioned previously, at this stage of the proceedings the Magistrate must have known she was going to pass a sentence in the order of six days’ imprisonment.

10.The situation was then exacerbated by the fact that it was only after plea that the Magistrate was informed of the suspended sentence.  She made no enquiries as to the background circumstances to that conviction, which had occurred on 14 April 2021, some four months previously. She made no enquiries of either the prosecution or the appellant as to the facts.  Whilst she did explain that the Court could require him to serve that sentence, she did not explain the principles which should apply to that activation i.e. that she could activate it in full, partially or not at all. At this stage, the appellant was still unaware of the possibility of having a sentence of imprisonment imposed upon him.

11.The Magistrate proceeded to ask the appellant if he wished to say anything about the sentence to be passed and he informed her that he and the complainant were to be married and that he had a new job in Germany starting in the new year.  Clearly they were reconciled and he was to be leaving Hong Kong within the next six months.  The Magistrate went on to explain the sentence she was about to pass and despite the defendant apparently following her line of logic, once it became clear he was going to prison, it was only at that point that he realised the seriousness of his position.  It clearly had not occurred to him at all that he would go to prison.  He was shocked.  Perhaps this was because he was using a second language, perhaps it was because we have a different system of law, but it was clearly only at the last minute that it dawned upon him what was to happen.  The Magistrate realised this was the case and adjourned the matter to consider the position but returned later to confirm her sentence.

Conclusion

12.The appellant was unrepresented.  The Magistrate did all she could in the early stages to persuade him to seek assistance and she explained the law and procedure to be adopted but it was apparent to her as it is to this court that the appellant had not understood the risk he faced and that he should have been represented.

13.Section 109C of the Criminal Procedure Ordinance, Cap 221, gives the court power to deal with a suspended sentence in the circumstances of this case but that power covers a range of options from activating the suspended sentence to making no order at all.  In the circumstances of this offending, the common assault bore no relation whatsoever to the status of the defendant as a Form 8 holder or to his breach of condition of stay.  If the offender and his fiancée were to remain in Hong Kong, the court may even have considered a non‑custodial disposal in order not to cause further tension between the parties.  That would certainly have been an avenue of mitigation which would have been addressed by counsel.

14.The sentence which befell the defendant as a result of the activation of the suspended sentence was more significant. Whilst it was not improper to activate a suspended sentence where the underlying offending was wholly different in nature to the matters before the court, it was something which should have been considered.  There may have been an argument not to activate the sentence or to activate it in part only.  It may be that the Magistrate activated it because she knew he was about to leave Hong Kong and therefore any continuation of the suspended sentence was inappropriate.  It was however, once again, an issue about which the appellant should have sought the benefit of legal advice.  It may have been prudent in any event for the Magistrate, before deciding to activate the suspended sentence in full, to have made herself aware of why the suspended sentence had been passed and then to stand back and ensure that the total sentence passed including the sentence which she passed for the offence of common assault reflected a balanced, fair and just disposal of the matter.

15.Whilst significant efforts were made by the Magistrate to deal with this matter appropriately, fairness required that he fully understood the implications of his plea and the resulting likely sentence, especially the effect it would have upon his suspended sentence and that was not achieved.

16.This appeal is allowed in principle only.  The appellant is now in Germany and has served the sentence passed upon him in full.  No order will therefore be made as to the sentence passed.

17.There will be no order as to costs.

Ms Rosa Lo, SPP of the Department of Justice, for the respondent

The appellant, unrepresented, absent.