HKSAR v. Tsui Sze Lok

HCMA000307/2003

HCMA307/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 307 OF 2002

(On appeal from ESCC 118 of 2003)

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Coram: Hon Jackson J in Court

Date of Hearing: 22 May 2003

Date of Judgment: 22 May 2003

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J U D G M E N T

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1.On 12 March 2003, after trial at Eastern Magistrates' Court, the appellant was convicted of an offence of inflicting grievous bodily harm, contrary to section 19 of the Offences Against the Person Ordinance, Cap.212. He was sentenced to a term of six months' imprisonment and he appeals against that sentence.

2.In 1994, for an offence of common assault the appellant was fined and ordered to pay compensation. Again, in 1997, for an offence of common assault he was fined and ordered to pay compensation. Plainly, he is a man of a somewhat intemperate disposition, although as I shall explain later, a reason for that may lie in his personal circumstances.

3.In her Statement of Findings, the magistrate had this to say about the offence and about the appellant :

"In sentencing the Appellant I took into account the nature of the incident.

It was clear from the evidence of both the Appellant and PW1 that there was a dispute and some sort of scuffle between the two, after which PW1 returned to his security post, ....

The CCTV .... showed some of the interaction between the Appellant and PW1 but the initial scuffle was off-screen. The CCTV did show PW1 returning to his security post. It then showed the Appellant following PW1 a short time thereafter. It also showed the metal gate falling over, PW1 and the Appellant are then hidden by a bush, and then the Appellant is seen walking away from the security post with the metal bar being held in his left hand. The metal bar is seen hanging down by the side of the Appellant's body. There is no suggestion on the CCTV that the Appellant was being attacked or indeed threatened at the time he walked over to the security post with the metal bar. There was thus, clearly no basis to the Appellant's claim of being in possession of the metal bar for the purposes of self-defence. It is always a very serious matter when a weapon, in this case a metal bar, is used to assault another. PW1 sustained an injury to his cheek which I was satisfied was caused when the Appellant aimed a blow at PW1 using the metal bar. I was satisfied that PW1 sustained the fracture to his finger as he was warding off this blow. The only inference, which can be drawn, is that the Appellant was aiming at PW1's head/upper body. This is a very serious matter. The only appropriate sentence is that of immediate imprisonment."

4.Against those facts and that background, in my judgment, there can be no complaint about the sentence imposed upon the appellant. However, he has written to this court in these terms :

" I now appeal against sentence. .... The reason is that I think the trial judge had passed an excessive sentence on me. In addition, I have to take care of my younger brother who suffers from lung cancer. My elder brother is in a semi-vegetative state and is still staying in hospital. Now my family is in financial difficulties and I am the breadwinner of the family, I hope that Your Lordship would reduce my sentence."

5.On the appellant's behalf, Mr Kwong who appears before me this morning adds that at the time when the appellant injured the victim, he (the appellant) was considerably provoked by what the victim said to him.

6.I am told this morning that the appellant has five brothers, four of whom live together in somewhat cramped conditions. One of those four suffers from lung cancer and has been confined at home for some months; another suffers from epileptic fits and can only work part time. The 5th brother has been in hospital at Eastern for three years in a coma.

7.I accept that the appellant is needed at home to look after and to provide for his brothers there and to visit his other brother in hospital.

8.Further, I accept what Mr Kwong has said to me this morning about the appellant's remorse, about the fact that he has not previously served a prison sentence, about the effect that being in prison since March has had upon him and about his determination from now on to keep out of trouble.

9.In all of the circumstances, and as an act of mercy, I will allow this appeal to the extent that the sentence of six months' imprisonment will be reduced to one of three months which will, I believe, permit the appellant's immediate release.

Representation:

Ms Grace Chan, SGC of Department of Justice, for the Respondent

Mr Jimmy Kwong Cheung Tim, instructed by Legal Aid Department, for the Appellant