HKSAR v. Law Yuk Kwong

HCMA001259/2002

HCMA 1259/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1259 OF 2002

(ON APPEAL FROM KCCC 14594/2002)

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Coram: Deputy High Court Judge Line in Court

Date of Hearing: 28 March 2003

Date of Judgment: 28 March 2003

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J U D G M E N T

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1.This is an appeal against sentence, the appellant having been convicted of assault occasioning actual bodily harm. The victim of the assault was his 85-year-old mother with whom he was living in Wong Tai Sin in August of last year.

2.I know from the background reports and the facts spoken to by the Probation Officer who prepared a Probation Officer's Report and a Community Service Report, that the family had their problems. The defendant was a married man; he had married lady from China but, unfortunately, his 85-year-old mother did not get on with the new wife. Accordingly, the new wife spent a lot of time living either in China or elsewhere in Hong Kong. They had two children. They were aged 8 and 3 and they lived basically with the defendant and the 85-year-old mother. The flat they lived in measured about 30 square metres. It had no partitions. It was basically just a living-room, a kitchen and a toilet. The report describes it as being crowded with motley miscellaneous things with very little space. The overall living condition was very poor.

3.The background reports also tell me that, due to the friction between the mother of those children and the mother of the defendant, she declined to help out with the looking after of the two young children. Accordingly, this defendant gave up his job and lived off social security because he had to look after them himself.

4.It is a background that many people manage with but it is a background which, one can see, reasonably can be expected to give rise to some tension. In August of last year, those tensions boiled over. What happened was there was an argument about the behaviour of one of his children. He lost his temper and he slapped his mother's face. She retaliated by scratching him back. He used a rubber slipper to hit her. He caught her in the eye and caused a bruise below her left eyelid.

5.Basically, he is a man of good character because the only entry on his criminal record was a binding-over for theft now a quarter of a century ago. The reports describe him as a responsible man with a decent life pattern.

6.As regards the mother, I know about her character from what the Magistrate said about her, and I quote his words. He said:

"I appreciate she is not an easy person to live with and it is very likely that she is a person who likes to curse people and has some very bad habits such as spitting at other people, and it is possible that her behaviour is very, very queer and it is difficult for you to live with her."

7.The Magistrate had to deal with the appellant after a contested trial. It is a great shame that the appellant decided to try and lie his way out of what was his obvious guilt, which he now accepts. I imagine he did that out of fear but, of course, it presented a very ugly spectacle to the Magistrate and I am not surprised that the Magistrate took a harsh view and, accordingly, sentenced him to 3 months' imprisonment.

8.The figure presenting himself before me today is in fact quite a different one. He has spent a fortnight in custody. He has had this hanging over his head since November of last year. He is worried to death about who will care for his children if he should go to prison for the 3 months. Not only that, his mother comes along today and says she has forgiven him. I did not have the mother sworn; I merely heard her say that to me from the well of the court. It is not the sort of case where I want to embark into an investigation as to her motivation, but she tells me that is her own free choice and I will accept that from her.

9.In those circumstances, judging the case as it appears before me now today, I would not be minded to send this man to prison. It is a disgraceful thing to do, to hit a woman, especially if that woman is your mother, especially if she is 85 years old, whatever the provocation from either her conduct or the circumstances in which they were both living, or a combination of the two. But for what I judge to have been a moment's lapse in an otherwise decent life, I think imprisonment is too harsh, especially when the mother is here, forgiving him.

10.I wish to make it clear I have no criticism of the sentence the Magistrate passed; I am not saying he was wrong. My job is not to judge him on what he did on the facts before him, but my job is to judge the case on the facts as they appear before me today.

11.My decision in this case is, of course, no licence to people to hit their mother. The respondents, in seeking to uphold this sentence, say that a message of deterrence should be sent clearly to the public. I do not think the public needs a message to say that it is wicked to hit your mother, and I do not think the personal circumstances of this defendant's case, which give him the mitigation I have rehearsed, should be overridden by an element of deterrence to others.

12.I think the right sentence in these circumstances is one of community service because there is an element of punishment in that; there is an element of doing some good out of the punishment and it marks the gravity of the crime without having to take away the appellant's liberty.

(Judge addresses appellant re Community Service Order)

13.The final thing I want to say which I omitted before is that I am confident that there will be no repetition here; firstly, because of the shock that the spectre of imprisonment has engendered in the defendant and, secondly, because the government has provided the mother with a flat of her own in Wong Tai Sin.

Representation:

Miss Vivien Chan, GC, of Department of Justice, for HKSAR

Mr Lam Shun-chiu, instructed by Director of Legal Aid, for the Appellant