R. v. Chu Ho Hoi

HCMA000545/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL Nos.544 & 545 of 1996

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Coram : Hon Stock, J. in Court

Date of hearing : 8 August 1996

Date of judgment : 8 August 1996

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J U D G M E N T

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1. This appellant has two appeals before me. The first arises from a conviction in March 1995 for an offence of common assault. He is said to have assaulted his wife on 21st December 1995. He contested the case, and was found guilty. He was sentenced to one month's imprisonment for the assault, and a suspended sentence of four months' imprisonment was activated. He was ordered to serve that consecutively to the one month term imposed for this offence. He appeals against both conviction and sentence.

2. The complainant in the case was the appellant's wife. Divorce proceedings had been instituted in June 1995, and there was subsequently an injunction precluding the appellant from entering the matrimonial home. The allegation was that the appellant entered the home on 21st December and broke down the door in doing so, and that he then punched his wife twice in her stomach, made to punch her head but merely landed a glancing blow. He is said then to have threatened his wife with death if she called the police. He stayed the night, the police were called and the appellant was then prosecuted.

3. The appellant's case was that he went to the house only to have a bath, and he said in evidence that he stayed there an hour or so, and that he did not see the complainant at all, did not assault her, although later in his evidence, he said he had spoken to her.

4. The magistrate has dealt very fully indeed with the evidence in his Statement of Findings and with great care. He believed the complainant, he did not believe the appellant. He applied all the proper principles and elements of law and there is no basis whatsoever for upsetting the verdict. The appeal against this conviction is dismissed.

5. As for sentence, it is evident from the papers which I have read that this appellant is a violent bully. He thinks little of beating his former wife. In February 1995, he admitted that in January he had assaulted her and he was then bound over to keep peace. He did not do so, for in May he assaulted his 14 year old daughter with a mop, a plastic chair and a skimmer, causing her injuries. For that offence, he received a four months suspended sentence, a sentence which in my judgment he was very fortunate indeed to receive. He was also in breach of the binding over order. In June, his wife petitioned for divorce, and an injunction precluding him from entering the matrimonial home was granted in December 1995.

6. The sentence of one month's imprisonment for this offence, and the activation of the suspended sentence, and the order that the two should run consecutively are orders which are all entirely unobjectionable, and the appeal against these orders is dismissed.

7. The second appeal is in respect of an alleged assault on 27th November 1995. The allegation again was that the appellant assaulted his wife. He was tried before another magistrate and convicted and sentenced in April 1996. He was sent to prison for six months. That sentence I am told was ordered to run consecutively to the sentences imposed in March. He appeals against both conviction and sentence.

8. This alleged assault, if it took place, was altogether more serious than the December assault. The appellant had caught his wife in the kitchen, shouted at her, punched her with his fist, twice on her forehead and once on her jaw and he then returned to the fray shortly after, hitting her about the head. Mr Hung on the appellant's behalf seeks to minimize the seriousness of this offence by pointing out that was a domestic dispute arising over cooking. That is no mitigation whatsoever. Wives in matrimonial homes are in particularly vulnerable positions and deserve to be fully protected from assaults by their husbands.

9. In this particular case, the evidence was that the appellant was so terrified that she climbed out the 11th floor window, trying to make her way to the 10th floor. She suffered bruises to her arms and head. The appellant said in his evidence that he didn't enter the flat, let alone assault. Her case was, according to his evidence, sheer fabrication.

10. The magistrate was satisfied that the complainant was a witness of truth. He accepted her evidence and he rejected the appellant's. That being so, his verdict was inevitable. There is no error of law demonstrated, and the appeal against this conviction is dismissed.

11. The magistrate took the view the appropriate starting point was nine months' imprisonment. He reduced that to a term of six months' imprisonment in order to give effect to his view of the appropriate totality of imprisonment, given the earlier sentences imposed in the other case. At that stage, it will be remembered, the appellant had already been sentenced to five months' imprisonment by reason of the orders of the magistrate on 23rd March.

12. This approach to the totality principle by the magistrate in April was not strictly accurate. He should first have determined what term was appropriate for the offence itself, giving such effect as was proper to any aggravating or mitigating factors. He should then have decided the appropriate totality and given effect to that, not by reducing the term for the offence with which he was dealing, but by ordering the term he imposed to run consecutively or concurrently or partly consecutively and partly concurrently, as might be appropriate.

13. Mr Hung points out to me that the maximum term of imprisonment for common assault is one year's imprisonment and he suggests that to impose a term near the top of that maximum period for a case of this kind is inappropriate. The term of nine months' imprisonment which the magistrate used as a starting point for this offence, and which in the circumstances I have described, is the sentence which the magistrate should have imposed, is not one day too long. This was a violent attack by a husband on his wife which scared the wits out of his wife. There was already a history of offences in the home and the effect of this man's conduct was to drive his wife to live in a shelter for beaten wives. Husbands who beat their wives can expect not a trace of leniency from these courts.

14. The totality which the magistrate concluded was the correct totality is not one with which this court would take any issue at all. In relation to this offence, giving effect to the correct approach, I substitute for the term of six months' imprisonment a term of nine months' imprisonment, and order that six months of that term should run consecutively to the terms totalling five months which the magistrate imposed in March; three months to run concurrently. The result is the same as that reached by the magistrate in this second case. It follows that the appeal is, subject to those amendments, dismissed.

Representation:

Mr D. Leung, C.C., for Crown

Appellant : Chu Ho Hoi, in person