HKSAR v. Yip Sze Ming

HCMA000500/2003

HCMA 500/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 500 OF 2003

(ON APPEAL FROM TWCC 1351/2003)

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Coram: Deputy High Court Judge Longley in Court

Date of Hearing: 21 August 2003

Date of Judgment: 21 August 2003

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J U D G M E N T

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1.This is an appeal against a sentence of 12 months' imprisonment passed on the Appellant by Mr Browne sitting at Tsuen Wan Magistracy Court on 6 May 2003 for an offence of inflicting grievous bodily harm contrary to section 19 of the Offences against the Person Ordinance. Mr Browne ordered that the sentence of 12 months' imprisonment should run consecutively to the sentence of imprisonment of 3 years which had been imposed on the Appellant on 3 September 2002.

2.The victim was a fellow inmate with the Appellant at Ma Po Ping Prison. When working in the metal workshop of the prison the Appellant attacked the victim from behind punching his head and face repeatedly. He broke the victim's nose. The medical report revealed deformity of the victim's nasal bone and linear abrasions 4 cm and 6 cm in the region of the left loin.

3.Although the Appellant admitted the "Brief Facts of the Case" which stated that the attack was without warning or provocation and stated that the Defendant had admitted under caution that he had committed the offence because he was in a bad mood because of an ongoing problem with the allocation of cigarettes, in mitigation, the Appellant's legal representative informed the Magistrate that the victim had insulted the Appellant's mother and made fun of the Appellant in front of fellow inmates.

4.The learned Magistrate referred to the Appellant's 39 previous court appearances and the fact that the Appellant was serving a term of 3 years imprisonment.

5.He stated that:

"Any assault in prison must be dealt with by way of increase in the period of time to be served by the offender in order to preserve order and discipline in the prison."

6.He went on to refer the 3 cases (MA 201/1996, MA 104/2000, and MA 35/2001) which, he said, dealt with assaults in prison. While the last case HKSAR v. Chiu Fei HCMA 35/2001 does relate to a prisoner convicted of Assault Occasioning Actual Bodily Harm, the earlier cases are not connected to assaults in prisons but relate to assaults on Police Officers.

7.He concluded:

"Taking into account all the circumstances and the principle of totality I took a starting point of 18 months imprisonment and reduced the sentence by 1/3 to reflect the guilty plea."

8.The way in which the Magistrate expressed himself in his formal Reasons for Sentence might tend to suggest that the Magistrate took into account considerations of the totality of sentence in arriving at the starting point of 18 months. That would not have been a correct approach. The proper approach in such circumstances should have been the assessment of the proper sentence for the offence in question before proceeding to consider the question of totality (see AG v. Au Kwok Chai AR 22/1995). But looking at the transcript of what the Magistrate said at the time, it would appear that in fact he had decided upon 12 months as being the appropriate sentence for the offence before he considered the question of totality.

9.It is implicit that when the Magistrate said he was considering question of totality, he was saying that he was considering whether any part of the 12 months should run concurrently with the sentence that the Appellant was already serving.

10.I do not consider that 18 months was an improper starting point in the circumstances of the fact of this case and the nature of the charge. Indeed Mr Cheng for the Appellant does not suggest that this was not a proper starting point. After giving the Appellant the usual discount one-third for his plea, the Magistrate would then have to consider the totality of sentence bearing in mind the fact that the Appellant was serving a sentence of 3 years imprisonment for robbery.

11.The fact that a Magistrate should consider the totality of the sentence does not mean that the Magistrate is required to order that part of the sentence he considers appropriate should run concurrently with the sentence, the Defendant is then serving. Neither HKSAR v. Suen Pan Hoi (MA 927 of 2000) nor HKSAR v. Chiu Fei (MA 35 of 2001) are authorities for that proposition. If authority is needed for the proposition that the court can order the whole of an appropriate sentence in the case of an assault in prison to run consecutively to the sentence the Defendant is then serving, it can been seen in the case of Attorney General v. Yuen Yum Shun [1980] HKLR 360.

12.It is clear from what he said that the Magistrate in this case was mindful of the totality in ordering the sentence of 12 months imprisonment to run consecutively to the term of 3 years the Appellant was currently serving.

13.Bearing in mind the circumstances of this case, the length of the sentence which the Appellant was currently serving and the fact that he was found guilty of causing Grievous Bodily Harm. I am satisfied that the Magistrate's sentence was neither manifestly excessive nor wrong in principle. I dismiss the appeal against sentence.

Representation:

Ms Agnes Chan, SGC, of Department of Justice, for HKSAR

Mr Francis M B Cheng, instructed by Legal Aid Department, for the Appellant