R. v. Yung Yu Chung
Read the full judgment text of HCMA 138/1995 on BabelCite. This High Court CFI judgment was delivered on 9 June 1995.
1. This is an appeal against sentence.
Cited by 1 case
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HCMA000138/1995 IN THE HIGH COURT 1995, No. 138 _____________
______________ Coram: Hon Litton, V.-P. sitting as an additional High Court Judge Date of hearing: 9 June 1995 Date of judgment: 9 June 1995 ________________ J U D G M E N T ________________ Litton, V.-P.: 1. This is an appeal against sentence. 2. The appellant pleaded guilty before Mr Andreé Wiltens at the Tuen Mun Magistracy on one charge of assault occasioning actual bodily harm and was sentenced to one month's imprisonment. 3. The offence occurred on 5 January this year when at the ground floor of Sing Hong Industrial Building, Hong Yip Street, Yuen Long, the appellant assaulted a work mate named Chung Ngai Bun together with six other men, occasioning actual bodily harm to the victim. The incident arose out of a very trivial affair, when the appellant, the victim and some friends were at a cooked food stall, in the course of which a dispute arose. The appellant went to the telephone to telephone some friends to assault the victim who was frightened and left the cooked-food stall. There was then a phone-call made to the victim at his home with a view to settling the dispute. Eventually, the victim went back to the place of work, Sing Hong Industrial Building, at the appellant's request. There seems to have been some attempt at that point to settle the dispute. The appellant was there with six other males and when the dispute could not be resolved the victim was attacked with fists, kicks and an iron pole; a wooden tool was also used. 4. The victim suffered from a swelling at his left cheek and several contusions in various parts of his body. A report was made to the police station. The appellant surrendered to the Yuen Long police station and admitted the offence; he said that he did it under the influence of alcohol and when charged, as I have said, he admitted guilt. 5. The magistrate in his reasons for sentence had weighed all the relevant factors very carefully. He noted the expression of remorse by the appellant, the appellant's apology to the victim and his offer to pay the victim's medical expenses. The magistrate also noted the fact that the victim had accepted the apology. Having regard however to the fact that a number of others were involved and objects like an iron pole and a wooden tool had been used, the Magistrate thought that deterrence was important in the matter of sentence. And he added:
6. Plainly, and as is accepted by counsel now appearing for the appellant, the Magistrate in no way erred in the sentencing process. He approached his task in an exemplary way. However this morning I have allowed to be adduced two affirmations as additional evidence on this appeal. One is from Mr Yau Lam Chuen, a director of the company which has employed the appellant since 1981. And secondly, an affirmation from Mr Chung Ngai Bun, the victim himself. 7. As far as Mr Yau's affirmation is concerned he deposes to the good work record of the appellant, the fact that since he was first employed as a moulding worker in March 1981 he has worked diligently and has since 1991 been promoted to be the supervisor of the Material Department of his factory, earning a total of about $12,000 a month with overtime. The employer Mr Yau has found the appellant to be genial and polite to his colleagues and says he is hard-working and co-operative with supervisors and with colleagues alike. Mr Yau considers the offence in question totally out of character. 8. As regards the victim, he too has made a very detailed affirmation. He deposes to the fact that on the day following the attack the appellant had gone to him and apologised, explaining that he was drunk at the time and told the victim that he was going to surrender himself to the police. Then Mr Chung went on:
9. The victim also urged upon this court leniency. 10. The powers vested in the High Court on appeal by section 119(1)(d) of the Magistrates Ordinance are wide. Apart from confirming, reversing or varying the Magistrate's decision the court is empowered to make such other order in the matter as it thinks just and by such order exercise any power which the Magistrate might have exercised. I am confident that if the Magistrate had before him this additional material that I now have before me, and considering the fact that this appellant's past record is not wholly discreditable, the Magistrate might well have exceptionally been inclined to exercise leniency in this case. Whilst in no way departing from the Magistrate's approach and confirming as I do that his approach was impeccable, nevertheless in the light of the additional material before me I feel that I am empowered and ought in the circumstances to intervene. 11. The order I make is therefore as follows. The appeal is allowed. The sentence of one month's imprisonment will be suspended for a period of two years. The effect, and I would ask the appellant carefully to note, is this: If within the period of two years he should commit another offence then not only will he be punished in relation to that other offence but the sentence of imprisonment suspended by today's order could be activated and he might accordingly be required to serve the suspended sentence. Additionally I exercise my powers under s98 of the Magistrates Ordinance and order that the appellant pays to the victim in this case Mr Chung Ngai Bun the sum of $5,000 in compensation. Such payment is to be made within two months of today's date. Representation: Mr Wesley W.C. Wong (Crown Prosecutor) for Respondent/Crown Mr A. Michael Delaney (M/S Kitty So & Tong) for Appellant/Defendant
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