Secretary for Justice v. Chan Kin Pong Bonny

CAAR 10 /2021

[2022] HKCA 221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 10 OF 2021

(ON APPEAL FROM KCCC NO 2102 OF 2020)

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REASONS FOR JUDGMENT

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.With leave granted by Poon CJHC on 15 June 2021, the Secretary for Justice applied for a review of the sentence of a Community Service Order for 160 hours imposed on the respondent by Deputy Magistrate Yu Chun Pong (“the magistrate”) at Kowloon City Magistrates’ Court on 9 March 2021, following his conviction on his own plea to one count of unlawfully and maliciously inflicting grievous bodily harm, contrary to section 19 of the Offences against the Person Ordinance, Cap 212.

2.On 13 January 2022, having heard arguments from the parties, we acceded to the application, set aside the Community Service Order and imposed a sentence of 6 months’ imprisonment in its place. We indicated that we would hand down the reasons for our decision in due course, which we now do.

Summary of facts

3.It was admitted by the respondent that he resided at a flat in Sung On Street in Kowloon with his then girlfriend, Ms Chiu. Sometime before 2:30 am on 29 April 2019, Ms Chiu, Mr Shi (“the victim”) and a female friend arrived at the flat, having been out drinking in the Tsim Sha Tsui area.

4.Shortly afterwards, the respondent returned to the flat, whereupon the female friend left, leaving the respondent, the victim and Ms Chiu in the premises. The respondent became agitated by the presence of the victim and began to argue with Ms Chiu, whereupon the victim sought to intervene. At this point, the respondent grabbed the victim by the neck and began punching his head in the region of his temples. Having pushed the victim onto the floor, the respondent then held his head with both hands and used both of his thumbs to press on the victim's eyes for about three seconds before again punching the victim’s temples between four and six times. By this time, the victim began to feel dizzy, but noticed his left calf and right thigh were also hit. The respondent then grabbed the victim’s hair and punched the corner of his left eye two or three more times before ceasing his attack. The respondent asked the victim to leave, whereupon the latter reported the matter to the police. Upon the arrival of the police at the scene, the respondent was arrested for the offence of assault occasioning actual bodily harm, contrary to section 39 of the Offences against the Person Ordinance.

5.Under caution, the respondent said, “What happened, I did not want. I was also hurt. I did it out of protection for my girlfriend, because I did not know why there was a stranger here at such late hours. We had some pushing but I did not mean to hurt anyone. I am sorry”[1].

6.The victim was immediately sent to Queen Elizabeth Hospital for medical treatment. He later sought treatment from Hong Kong Sanatorium Hospital and the Hong Kong Eye Hospital. It was admitted that the victim sustained the following injuries to his eyes (principally the left eye):

(1)  Large (more than 50%) orbital floor fracture to the left eye;

(2)  Sub-conjunctival haemorrhage;

(3)  Minor retro-bulbar haemorrhage;

(4)  Minimal enophthalmos (the abnormal retraction of the eyeball into the socket); and

(5)  Diplopia (double vision).

History of the proceedings in the magistrate’s court

7.Although the offence took place on 29 April 2019, the respondent was not charged with the present offence until 9 August 2020, more than 15 months later. After several ensuing mention dates, the matter was in due course set down for trial before the magistrate on 23 and 24 February 2021. However, on 23 February 2021, the respondent pleaded guilty to the charge and agreed the summary of facts.

8.At the commencement of mitigation following the respondent’s plea, the magistrate asked whether there was any evidence of permanent disability to the victim, to which Mr Martyn Richmond, counsel then acting for the prosecution on fiat, responded, “…we do not have any medical report, your Worship, which states that there has been any permanent injury”[2]. This “concession”, the correctness of which we shall look at shortly, was swiftly taken up by Mr Giles Surman, counsel then appearing for the defence, as he did for the respondent in these proceedings, who told the magistrate that the defence “were frankly relieved”[3] that there were no long term consequences for the victim. Having heard further mitigation from Mr Surman on 23 February 2021, the magistrate decided to call for a Community Service Order report to be prepared, and adjourned sentencing to 9 March 2021 for that purpose.

9.On 8 March 2021, the Department of Justice filed on the court and defence a Victim Impact Statement from the victim, dated 4 March 2021, together with a medical report issued by the Ophthalmology Centre of the Hong Kong Sanatorium Hospital, dated 1 March 2021, and a report of the Psychiatric Clinic of the Prince of Wales Hospital, dated 27 March 2020.

10.Among other things, the victim said in his Victim Impact Statement[4] that his eyes were now of unequal size and his left eye would continue to shrink with age, a condition he characterised as “disfigurement”. The left orbital fracture would not heal by itself and the only solution would be to support the left eye by way of synthetic implant. He explained that he wished to wait before deciding whether or not to have this surgery. He also said he suffered from permanent double vision in the left eye when looking up, down or sideways. He explained that his perception of distance had affected his playing of ball games or velocity sports and even climbing the stairs. He had also been advised not to drive.

11.The victim further described how he had been suffering nightmares and anxiety attacks since the assault and had succumbed to depression, for which he had received regular psychological and psychiatric consultation at Prince of Wales Hospital. An accompanying report from that hospital disclosed that the victim had been diagnosed as suffering post-traumatic stress disorder[5]. We should say we also note that one of several doctors listed in the Victim Impact Statement, whom he has attended since the incident, is a psychiatrist in private practice.

12.A further report from the Ophthalmology Centre of Hong Kong Sanatorium Hospital, dated 1 March 2021, noted that the victim still suffered from diplopia in both his lateral and vertical gaze and that both eyes were mildly displaced towards the temples. It was explained to the victim that since his diplopia condition had persisted for over a year and a half, it was “likely static”[6]. He was advised to wear eye protection during sports, to avoid contact sports and not to drive.

13.The magistrate, having obviously read the Victim Impact Statement, then asked prosecuting counsel[7]:

“…apart from the witness statement, is there any of the updates, as appear in the statements, substantiated by medical reports?”

To this question, Mr Richmond answered[8]:

“I don’t believe so, Sir”,

although he went on to point out that after one and a half years, the victim was still experiencing persistent diplopia when looking to his sides. Having heard further mitigation, the magistrate said he was adopting the recommendation of the Probation officer for the imposition of a Community Service Order of medium duration, and duly made an Order for 160 hours[9]. On so doing, he remarked to the respondent[10]:

“Having regard to the seriousness of the offence, I also want to send you a message that this offence is really serious.”

14.On 22 March 2021, the prosecution applied to review the sentence, pursuant to section 104 of the Magistrates Ordinance, Cap 227; and, on 25 May 2021, Ms Phenix Tse of the Department of Justice duly appeared in place of Mr Richmond. Having heard submissions from Ms Tse and Mr Surman, the magistrate nevertheless confirmed his original sentence.

Mitigation

15.The respondent was 43 years of age at the time of his sentence. He held a Master’s degree and had worked in the property management department of various international banks in Hong Kong. His last salary was about HK$90,000 per month, but he had lost his job as a result of the Covid-19 pandemic.

16.It was submitted that upon returning to his flat, the respondent became agitated when he found the victim drinking and enjoying the company of his girlfriend in his own home[11]. Feeling “upset, jealous, angry he remonstrated with his girlfriend”[12]. The assault had occurred when the victim intervened and refused to leave the flat. It was stressed on his behalf that the assault was not premeditated, it was out of character and it did not involve weapons. It was further submitted “there is no suggestion that the victim has suffered permanent damage”[13]. Later during oral mitigation, Mr Surman returned to the point and reiterated[14]:

“We were frankly relieved when we got this medical report showing that there were no long-term consequences, no operative procedures were required and that, certainly, at the extreme of vision range, there were some minor issues but he can go about his life, go about his normal functionality without any impingement at all as a result of this very unfortunate incident.”

We might add that prosecuting counsel, at Mr Surman’s invitation, then confirmed with the court[15]:

“No, I admit, Sir, that my learned friend has quoted the report accurately.”

17.Having listened to mitigation, the magistrate decided to call for a Community Service Order report, and addressed the respondent in the following terms[16]:

“So, right, Mr Chan, so it is, no doubt, a very serious offence and, without the submission of your counsel, I might not have considered the option of a CSO.”

He then adjourned the matter for 14 days for the preparation of a Community Service Order report.

18.By 9 March 2021, as noted, the Victim Impact Statement together with two further medical reports had been sent to defence counsel and also forwarded to the court by the Department of Justice. At the resumed hearing, Mr Surman took issue with the late filing of the Victim Impact Statement and medical reports, complaining that he was taken by surprise by their contents which he had only seen the night before the hearing. However, no real issue was joined about the contents, save that Mr Surman questioned what certain things in both the Victim Impact Statement and the medical reports meant.

19.He need not have been too concerned, because the magistrate made it clear from the beginning of the adjourned hearing that[17]:

“…for sentence, we always focus – or mainly focus on culpability of the defendant, not the consequence, unless the statute requires, okay, unless that.”

In his Community Service Order report, the Probation officer noted that the respondent had admitted his wrongdoing[18] and, in light of what he considered was the respondent’s remorseful attitude, clear record and stable financial condition and work pattern, recommended the imposition of a Community Service Order of medium duration between 81 and 160 hours.

Reasons for sentence

20.Having considered the submissions of both the prosecution and the defence and the content of the Victim Impact Statement, the magistrate was of the view that the Victim Impact Statement, although not irrelevant, did not have a significant bearing on sentencing[19]:

“…I have considered the recent statement made by the prosecution witness. I will not mean that the report is not relevant to the sentence and, at least, it is in the public interest for me to consider the content of it. Of course, if we are not talking about public interest, if we are talking about restitution purpose of the sentence, I don’t think that would have a significant bearing because, in any event, it is open to the prosecution witness to raise a civil claim against you and I would suppose your lawyer will also explain that to you.”

21.Having concluded that the option of a Community Service Order was both “feasible and appropriate, even for this kind of serious offence, having regard to the background and facts available to the court”[20], the magistrate adopted the recommendation of the Probation officer and sentenced the respondent to the Community Service Order concerned.

The application for review of sentence

22.The prosecution subsequently gave notice of its intention to seek a review of the magistrate’s sentence under section 104 of the Magistrates Ordinance. The matter was heard by the court on 25 May 2021 and whilst Mr Surman continued to represent the respondent, Ms Tse appeared on behalf of the prosecution in place of Mr Richmond.

23.It was contended by Ms Tse that the magistrate had failed to give sufficient weight to the gravity of the offence and the Victim Impact Statement and that there had been too much focus by the court on the rehabilitation and reform of the respondent, which was neither commensurate with the seriousness of the matter, nor did it do justice to the victim of the crime. Citing various comparable magistracy appeal cases, she suggested that an appropriate starting point should have been between 9 and 12 months’ immediate imprisonment.

24.In his reasons for dismissing the review application and confirming the original sentence, the magistrate made a similar comment in relation to the consequences of the respondent’s conduct, which he had made when sentencing[21]. He indicated his view that it was not the “duty of the court and it is not possible in a wounding case (sic) to punish a defendant for exactly the damage caused, for sentence cannot be taken as a revenge or reparation”[22]. Having distinguished the authorities supporting the prosecution’s argument[23], he rejected the submission that the starting point should have been between 9 and 12 months’ imprisonment.

Grounds of application for review of sentence

25.Pursuant to section 81A of the Criminal Procedure Ordinance, Cap 221, the applicant applied with leave to this Court to review the imposition of the Community Service Order as an appropriate sentence by the magistrate in the circumstances of this particular case. It was contended in the written application for review that the sentence was wrong in principle and/or manifestly inadequate, since (i) it failed to reflect the gravity of the offence and the respondent’s culpability (Ground 1); (ii) the magistrate was in error in placing undue weight on the location of the offence (Ground 2); (iii) the magistrate was in error in placing undue weight on the impulsiveness of the respondent’s actions (Ground 3); and (iv) the sentence was wrong in principle and/or manifestly inadequate (Ground 4).

The applicant’s submissions

Ground 1

26.Mr Jonathan Man, appearing for the applicant together with Ms Tse, submitted that although the magistrate appeared to acknowledge the gravity of the offence, he was merely paying lip-service to such an assessment since he had evidently failed to pass a sentence commensurate with the seriousness of the circumstances. It was contended that the intentional and repeated attacks on the victim’s head and body, causing serious physical injuries and mental trauma to the victim, were unprovoked and entirely unjustified. Given the gravity of the offence, an immediate custodial sentence with substantial retributive and deterrent effect was warranted.

Ground 2

27.Mr Man acknowledged that it might be an aggravating feature if an assault occurred in a public place, where, for example, it might generate fear in others present, pose a risk of harm to those passing by or provoke others to violence. However, the absence of such features did not reduce the respondent’s culpability. By imposing a non-custodial sentence notwithstanding the gravity of the offence, the magistrate risked sending the wrong message to the public that serious offences which took place in private or domestic premises could be met with leniency, simply because of the location in which they took place.

Ground 3

28.It was argued that the respondent became agitated by the mere presence of the victim at his home with his girlfriend and that his reaction was the simple result of jealousy, for which there was no justification. The fact that it was an impulsive assault at most only went to show the absence of premeditation.

Ground 4

29.For the reasons stated in the other grounds, the sentence of a Community Service Order was said to be wrong in principle and/or manifestly inadequate, since it fell “outside the range of sentences which the judge, applying his mind to all relevant factors, could reasonably consider appropriate”: per Lord Lane CJ in Attorney-General’s Reference No 4 of 1989[24].

The respondent’s submissions

30.Mr Surman, in reply, contended that it was inappropriate for the applicant to refer to the Victim Impact Statement in order to advocate for a harsher sentence. He argued that even if not inadmissible, there were so many uncertainties in the Victim Impact Statement that the court should not have placed any reliance on it for the purpose of sentencing.

31.He disagreed with the notion that the magistrate had merely paid lip-service to the seriousness of the offence: not only had the magistrate expressly acknowledged the gravity of the offence, he had made reference to cases where defendants had been sentenced to more severe punishments for the same offence, albeit on different facts. The magistrate had accordingly arrived at a sentence which was not outside the range of sentences open to him.

32.In relation to Ground 2, Mr Surman contended that it was a mischaracterisation by the applicant to suggest that the magistrate had placed undue weight on the location of the offence, when clearly what he meant was that this was an offence in a domestic setting rather than a public one which would justify a particular element of deterrence. As for Ground 3, it was argued that it was inaccurate and unfair for the applicant to allege that the respondent was agitated by the “mere presence” of the victim at his home with his then girlfriend. The respondent’s reaction upon discovering another man in his own home with his girlfriend and on being further provoked and insulted by the victim could be seen as impulsive and understandable, even though it could not be excused.

33.Mr Surman also reminded the Court that this matter had now been hanging over the respondent’s head for 33 months, during which time it had taken over 15 months to charge him with the present offence after his initial arrest for a different offence under section 39 of the Offences against the Person Ordinance; he had faced an unsuccessful review application before the magistrate; and, finally, there was the present application for review of sentence to the Court of Appeal. Moreover, he had completed 128 hours of the 160-hour Community Service Order. Such a history should be borne in mind by the Court when determining whether, in the event that the application was successful, the sentence should be varied.

Discussion

34.What is immediately obvious, and what bedevilled the sentencing process in this case from the outset, was the failure of the magistrate to call for an updated medical report on the victim. At the time mitigation was first advanced, all the magistrate had before him was a bundle of medical reports, the most recent of which, dated 29 August 2019, was some 18 months old. When he rightly asked whether there was any report indicating any permanent disability or injury, prosecuting counsel referred to the report dated 23 May 2019 (some 21 months previously) which clearly stated:

“As it is now less than six months from the date of initial injury, it is not appropriate to comment on the degree of permanent damage at this stage.” (original emphasis)

One would have thought, given the manifest uncertainty inherent in that statement, that the magistrate would have called for an updated medical report on the victim to ascertain the position as at February 2021. Violent crime can cause serious and lasting physical harm and/or emotional distress. Where that possibility is obvious, as it was in this case, it is the duty of a judge or magistrate to call for updated information on the effect and impact of the offence on the victim by way of medical reports and, if appropriate, a Victim Impact Statement, for the physical and psychological consequences of such an offence can affect the culpability of the defendant who caused it. As Lord Taylor CJ held in Attorney-General’s Reference No 2 of 1995[25], albeit in the context of emotional distress caused to the victim of indecent assault but which statement is equally applicable to the victims of violent crime, “the gravity of this case is aggravated by the impact on this particular victim”.

35.It was also incumbent on the magistrate in a case such as this to call for a Victim Impact Statement from the victim. Mr Surman has complained that the prosecution caused a Victim Impact Statement to be prepared and served on him and the court the day before the adjourned sentencing hearing on 9 March 2021, which took him by surprise. With respect, when the case came on before the magistrate on 23 February 2021, it was anticipated that it would be a two-day trial. Instead, the applicant pleaded guilty on the first day. There would at that stage have been no reason for the prosecution to have prepared a Victim Impact Statement in advance of a contested trial, in which the defendant/respondent may or may not have been found guilty. Since the magistrate did not call for a Victim Impact Statement, it was perfectly proper for the prosecution to have served one on the court and the defence during the adjournment. Zervos J (as he then was) in a magistracy appeal, HKSAR v Yang Xingyun[26], has made it clear that:

“An important part of the sentencing process is hearing from the victim and understanding the impact that the crime has had, and may continue to have, on him or her. The importance of hearing from the victim is to properly understand the nature and circumstances of the crime and how the offending has impacted upon the victim at the time or subsequently.”

In terms which resonate with Lord Taylor CJ’s statement in Attorney-General’s Reference No 2 of 1995, he added:

“The effect of the offending on the victim goes to determine the gravity of the offence.”

36.In HKSAR v Tsoi Chi Ming[27], in sentencing a defendant for an offence of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, the same judge had said in terms which we entirely endorse:

“It is time to recognise and affirm the importance and necessity of a victim impact statement in the sentencing process. All too often the victim goes unheard when it comes to determine the seriousness and impact of the crime that has been committed.

Where a victim of crime has been physically injured or suffered emotional problems, loss or damage because of a crime, including any grief, distress or trauma that a crime caused, he or she has the right to be heard during the sentencing process of the offender upon his conviction of the crime: see Sargeant v Police (1997) 15 CRNZ 454.

A victim impact statement plays a vital role in assisting the court in imposing a just and appropriate sentence on the offender. Its function is to help the sentencer understand the impact of a crime on the victim which is an important consideration when sentencing someone. In order to ensure a just and appropriate sentence, a sentence should have regard to all relevant circumstances relating to the offence, including the victim, and the offender.”

37.With respect to the magistrate, he was wrong to suggest that the impact of the offence was not the concern of the criminal courts since that impact was something that could be dealt with in the civil courts by way of reparation. It is to be noted that in Attorney-General’s Reference No 2 of 1995, the trial judge had declined to look at a statement which had been prepared by the victim and concerned the impact of the offences upon her. His reason was apparently similar in that he thought it “inappropriate for a judge to receive evidence which sought to aggravate the impact which the offending had had on the victim”[28]. Lord Taylor CJ did not agree with such reasoning, holding on behalf of the Court[29]:

“We consider it is wholly appropriate that a judge should receive factual information as to the impact of offending upon a victim. The judge is well equipped to know whether the statement put before him contains evidence of fact relevant to sentencing or whether an attempt has been made to use it to try to hot up the case against the offender.”

We respectfully and entirely agree.

38.Accordingly, we reject the criticism that the prosecution improperly sought to serve material on the parties the day before the adjourned sentencing date, the lateness of which was unfair to the applicant. In our view, after it became clear that the respondent was pleading guilty to the offence, the Department of Justice quite properly and expeditiously sought to provide the court with relevant and necessary material which, with respect, the magistrate ought himself to have ordered. It is true that a magistrate’s court is a court of summary jurisdiction. But that does not mean it metes out summary justice in a pejorative sense without calling for the material it needs in order to deal fully, fairly and effectively with particular offences, which may include hearing from the victims of crime in appropriate cases.

39.We have already referred to the findings in the reports of the Ophthalmology Centre of Hong Kong Sanatorium and Hospital, dated 1 March 2021, and the Psychiatric Clinic of Prince of Wales Hospital, dated 27 March 2020. In his Victim Impact Statement, prepared on 4 March 2021, the victim, as we have seen, detailed the physical injuries to his eyes and the impact on his daily life flowing from these injuries. What these documents show is that rather than suffering no permanent damage or injury, the victim will continue to be affected by what the respondent did to him in different ways: some of those effects will be endured for a very long time to come, others permanently. The diplopia from which he suffers is likely to be permanent and will undoubtedly affect the way he conducts his life in future. We can entirely understand why the victim has been reluctant to undergo surgical operation and an implant with the obvious risks involved, but why he may have no choice if his eyes are not to deteriorate further. His concerns about the dangers of undergoing such surgery with no guarantee of improvement to his eyes have been consistently recorded in his medical reports since 3 May 2019. The fact is that the victim should never have been placed in such a dreadful dilemma and forced to make such an agonising choice in the first place. As for the victim’s psychological response to what happened on the night of the incident, we hope that this will subside with time. We have no doubt as to the genuineness of his feeling, given the ferocity of the one-sided and unexpected onslaught against him.

40.The eyes are not only highly vulnerable, they are perhaps the most precious part of the human body. That the respondent should have concentrated his attack on the victim’s eyes, by repeatedly punching him in the region of his eyes both before and after what appears to be an attempt to gouge them betrays a malevolence which is particularly disturbing. The word “maliciously” in the charge is in this case especially apposite.

41.We agree with the application that the magistrate did not pay sufficient regard to the gravity of the offence, important aspects of which were the long-term physical and psychological effects on the victim. Had he done so, he could not have regarded a Community Service Order as one of the options reasonably open to him in this particular case. It may be remembered that section 19 of the Offences against the Person Ordinance is an excepted offence under schedule 3 of the Criminal Procedure Ordinance, thus removing a suspended sentence of imprisonment as one of the sentencing options for the offence. That is not to say that the option of a Community Service Order is similarly removed: much will depend on the nature and circumstances of the case as to whether such a disposal is appropriate. However, what this provision does serve to remind us is that the legislature has already limited the range of sentencing options open to a court when dealing with a section 19 offence. That in itself is revealing of how seriously the courts should begin by viewing the offence.

42.It is not necessary to deal specifically with Grounds 2 and 3 of this application, which are to some extent subsumed in the argument as to the gravity of the offence and the respondent’s culpability. This was an extremely serious offence and its gravity was neither lessened nor aggravated by where it did or did not take place. As for the respondent’s impulsiveness, we agree that he cannot have planned the attack, since he appears not to have been aware that the victim was even in his home when he returned in the early hours. But there was still a disturbing element of maliciousness in the attack, in which he concentrated his sustained and wholly unjustified assault on the victim’s eyes.

43.We agree with the application that the sentence imposed by the magistrate was both wrong in principle and manifestly inadequate. Accordingly, it falls to us to consider the correct sentence and whether it should be applied to the respondent. We do not, with respect, accept Mr Man’s submission of a starting point between 9 and 12 months’ imprisonment. We would have adopted a starting point of 15 months’ imprisonment for this assault given the wholly unjustified, one-sided and sustained attack by the respondent on the victim and his particular concentration of that assault on the victim’s eyes.

44.Although the magistrate did not need to consider, and did not therefore address, the question of discount for entering a plea of guilty, since he adopted a sentence which was an alternative to imprisonment, the fact is that the respondent’s plea of guilty was only entered on the first day of trial. Nevertheless, we cannot ignore the history of this matter, which resulted in the respondent not being charged with the present offence until more than 15 months had passed, and not being brought before a court until more than 16 months had passed. Whatever the reasons for this length of time, they cannot be laid at the door of the respondent. Moreover, when the respondent was eventually charged, the offence for which he had been arrested, namely assault occasioning actual bodily harm, which is not an excepted offence, was replaced with one of inflicting grievous bodily harm, which is an excepted offence. It is hardly surprising, therefore, that when the matter first came before the court for mention on 24 August 2020, no plea was taken so that the respondent could obtain legal advice as to the ramifications of the new charge. It is also apparent from the court record that the defence did not have all the relevant documents relating to the offence at that stage. They would clearly have been necessary in advising the respondent as to the appropriateness of the new charge.

45.This was followed, on 6 October 2020, by a further adjournment for the defence to make written representations to the Department of Justice concerning the plea. When the fixing of trial dates took place on 23 November 2020, some 19 months after the offence, the respondent pleaded not guilty. It was only on the first day of trial on 23 February 2021 that the respondent changed his plea to guilty.

46.Given this protracted history prior to the case reaching the magistrate’s court and the changing of the offence charged, for which the respondent would obviously have sought and needed advice from his lawyers, we consider that we should nevertheless give the respondent a full one-third discount for his plea. We are not to be taken as saying that there was unreasonable delay by the prosecution, but the fact is that the case did not actually arrive at a court of summary jurisdiction for the first time until 24 August 2020, 16 months after the commission of the offence.

47.If we allow a full one-third discount for plea, the appropriate sentence would become 10 months’ imprisonment. However, we cannot ignore the following factors in arriving at a fair and just sentence on the respondent, given the history of this matter. Firstly, this is an application for review of sentence in which the Court is substituting a sentence of immediate imprisonment for a non-custodial sentence. Secondly, the respondent has completed more than 80% of the Community Service Order imposed. Thirdly, the respondent has gone through a protracted set of proceedings in the magistrate’s court, which included an unsuccessful application by the prosecution for a review of sentence under section 104 of the Magistrates Ordinance, during which he was privately represented, in which the Community Service Order was not disturbed.

48.For these reasons, we have concluded that a further discount on what would otherwise be an appropriate sentence can be given and that the respondent should serve a sentence of 6 months’ imprisonment. Accordingly, having allowed the application for review of sentence, we set aside the Community Service Order and, in substitution, pass a sentence of 6 months’ imprisonment.

Mr Jonathan Man DDPP (Ag) and Ms Phenix Tse SPP, of the Department of Justice, for the Applicant

Mr Giles Surman, instructed by Robertsons, for the Respondent