HKSAR v. Lai Chi Wai

HCMA000577/1998

HCMA577/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 577 OF 1998

(On appeal from NKC1593 of 1998)

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Coram : Deputy Judge Lugar-Mawson in Court

Date of hearing : 16 December 1998

Date of judgment : 16 December 1998

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J U D G M E N T

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1. The appellant LAI Chi-wai appeared before Mr Timothy Jenkins, Permanent Magistrate, sitting at North Kowloon Magistracy on 8 May of this year. There he faced three charges. The first was a common assault on 7 February 1998. The second an amended charge of resisting a police officer in the execution of his duty on the same day, and the third a charge of failing to provide a specimen of breath for screening purposes, also on the same day. The appellant was represented by counsel and pleaded guilty to all three charges he faced. Mr Jenkins heard his then counsel Mr Eric KWOK in mitigation.

2. The facts of the case briefly are these: the victim was a taxi driver who, by his driving manner, had in some way offended the appellant. The appellant had scolded the taxi driver, this led to an altercation. The appellant got out of his vehicle, and in the course of the altercation and whilst police officers were present, proceeded to hit the taxi driver on the nose with his fist. The police inquiries, obviously, continued, throughout them the appellant behaved in an uncooperative manner. He ended up hitting a police sergeant with his mobile phone, this caused the sergeant to fall to the ground. In the course of the altercation the appellant refused to take a breath test.

3. As I understand it, Mr Jenkins at first sentenced the appellant to serve 14 days' imprisonment on the common assault charge, and 28 days' consecutive imprisonment on the resisting a police officer in the execution of his duty charge. He fined the appellant $5,000 and banned him from driving for six months in respect of the failure to give a specimen of breath charge.

4. When the case again came before Mr Jenkins on review, he reduced the 28 days' imprisonment on the resisting a police officer in the execution of his duty charge to 14 days' imprisonment, but still ordered that the periods of imprisonment be served consecutively.

5. In the hearing before me this afternoon the appellant does not appear. He is in China and, due to a business dispute there, has been prohibited by the authorities from returning to Hong Kong. Documentation evidencing that has been put before me. After hearing his counsel, Mr Callaghan, I am satisfied that I have jurisdiction to hear the appeal, which I have done.

6. Mr Callaghan advances two arguments. Firstly, an aggregate period of 28 days' imprisonment does not permit the appellant to enjoy early release from prison for good behaviour. Secondly, Mr Callaghan argues that, in his reasons for verdict, Mr Jenkins, by referring to the appellant's previous convictions, may have taken those convictions as in some way aggravating the sentences he passed upon the appellant.

7. Mr LAM, for the prosecution, reminds me that my concern is whether or not the sentences are contrary to principle, or are manifestly excessive, and argues that they are neither.

8. I do not read Mr Jenkins' passage in his reasons for sentence as indicating that he took the appellant's previous convictions as being an aggravating factor. Although, perhaps, he could have expressed himself more directly, I am satisfied that he was regarding the fact that the appellant had previous convictions, including two convictions for assault, as being matters which justified him in imposing custodial sentences. As Mr LAM rightly says, what I'm concerned with is: are these sentences either contrary to principle, or manifestly excessive?

9. There is no doubt that the appellant deliberately obstructed a police investigation. He acted loutishly and arrogantly both towards the taxi driver whom he assaulted and the police officers. He frustrated the investigation by refusing to take a breath test. He has previous convictions, including two previous convictions for violence, and is not a first-time offender.

10. I am not satisfied that the sentences imposed by Mr Jenkins are manifestly excessive. Certainly, they are not contrary to principle. This type of loutish behaviour addressed towards other road users is not going to be tolerated in Hong Kong, even by wealthy businessmen, as the appellant now appears to be.

11. For these reasons the appeals against sentence are dismissed. As the appellant has absented himself from the hearing of the appeal, and has been granted bail pending appeal, his bail is revoked and a warrant for his immediate arrest is issued.

Representation:

Mr Gary LAM, Government counsel for HKSAR

Mr Peter Callaghan leading Miss Valerie LIM (Ivan Tang & Co) for the Appellant.