R. v. Tsang Yuk Kwong

HCMA000480/1995

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY CRIMINAL APPEAL NO. 480 OF 1995

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Coram: The Hon. Mr. Justice Sears in Court

Date of hearing: 24 May 1995

Date of delivery of judgment: 24 May 1995

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J U D G M E N T

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1. This is an appeal against conviction from Miss Maggie Poon at Tsuen Wan Magistracy. The appellant was convicted of three charges, criminal intimidation, possession of offensive weapon and common assault.

2. These offences occurred inside a laundry shop which the complainant and the appellant ran as partners. They had been lovers, had a relationship but it had turned sour before the event. There was an argument that went on and the appellant threatened to burn down the shop and kill her. He brandished a Samurai Sword threatened her and touched her with it.

3. The Magistrate went though all the evidence. Mr. Tolliday-Wright has sought to challenge on the basis there were certain improbabilities in one of the witness' criminal record. In my judgment, the Magistrate had looked at all these matters carefully and made findings of fact. She came to the conclusion the offence was committed. The only matter of any substance here is the appeal against sentence.

4. Generally speaking in criminal intimidation type of cases, an immediate custodial sentence is given. This, however, was quite a different type of criminal intimidation as one normally finds in Hong Kong. This was an emotional outburst by a man when his relationship had turned sour. It was, in my judgement, completely out of character for a man of good character. It was a classic case where suspended sentence should have been passed. A man of 38, not likely to offend again. I do not know why the Magistrate did not pass a suspended sentence. She said that she found no exceptional circumstances, but that is not the basis for passing suspended sentences. For this type of person, a man of good character, not likely to offend, acting out of character, albeit the matter was serious justifies such a sentence. The Magistrate also said that she thought there was an element of false imprisonment. He was not charged with that.

5. Furthermore, I see no reason why he was not given bail pending appeal. Magistrates must not be sensitive about giving bail pending appeal. We are all appealed of. He has spent just over 2 months in prison and therefore I am not going to pass the suspended sentence which I think would have been a proper sentence. I pass a sentence imprisonment which permits his release today.

Representation:

Mr. William Lam, S.C.C. for Crown

Mr. Tolliday-Wright (So & Co.) for Appellant