HKSAR v. Lam Hon Hei

HCMA001044/1998

HCMA 1044/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1044 OF 1998

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Coram: Stock, J. in Court

Date of hearing : 8 December 1998

Date of judgment : 8 December 1998

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J U D G M E N T

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1. This is an appeal against conviction and sentence. The appellant was charged with two others of assault occasioning actual bodily harm.

2. The offence is said to have taken place in Sai Yeung Choi Street on 15th April 1998. The evidence was that the victim of the assault, Tsui Hin Chi, attended a karaoke club with some friends, and as they emerged they were approached; one of the girls in their group was asked for repayment of $500 which she is said to have owed one of the approaching group. Tsui said that he would go and fetch the money but a short while later, in the street, a group of at least five youths set about him, knocking him to the ground and kicking him when he was down.

3. Whilst this one-sided fight was in full swing, the police arrived and the evidence which condemned this appellant came from a police officer, Chan Wing. Four or five young men were assaulting Tsui who was sitting on the ground, and the officer's evidence was that he saw this appellant kick the victim on his forehead with his right leg. The incident took place right in front of him and the lighting conditions were normal.

4. There was evidence from another prosecution witness that there was spot lighting on at the time. The officer's attention was attracted to this specific appellant because the nature of his act was, as that witness put it, "so great". There was evidence from other prosecution witnesses that as soon as the police arrived, the assaulting group scattered in all directions. The police witness said that the appellant ran and he, the officer, chased him and eventually stopped him.

5. The appellant denied that he had part-taken in the fight and he asserted that he ran because he was in breach of a supervision order and thought that he was wanted for that.

6. The appellant gave evidence before the Magistrate and his defence was that he was but a mere onlooker, and knew none of the assailants nor did he know what the fight was about. He repeated the assertions that he fled because he thought the officer wanted him for some breach of the supervision order.

7. As is evident from the transcript which I have studied, the Magistrate approached his task with meticulous care. He acquitted the two other defendants yet he was sure of this appellant's guilt. He took into account all relevant facts and approached the several features of law which arose accurately.

8. There is no ground upon which to disturb this conviction, and the appeal against conviction is dismissed.

9. As for sentence, the appellant is now aged 20 years and already has a bad criminal record, including one previous conviction for assault occasioning actual bodily harm, a conviction for theft and a conviction for robbery. In October 1995, he was sent to training centre. In all these circumstances, this appeal against sentence is impertinent.

10. The only question which exercises my mind is whether a more severe sentence, effected by way of imprisonment, might be justified. The training centre suitability report which was in front of the Magistrate makes sorry reading. The appellant has been in and out of institutions and has constantly misbehaved even when there, and is presently under recall. Nonetheless, he is considered suitable still for detention in a training centre, and the Magistrate is of the view that he is in need of professional supervision and counselling. I cannot gainsay that view. The Magistrate was of course perfectly right to take the view that a non-custodial sentence was appropriate. This was a nasty assault.

11. The appeal against sentence is dismissed.

Representation:

Mr Wesley Wong of Department of Justice, for HKSAR

Appellant in person, present