The Queen v. Yee Kau Lam

HCMA001244/1990

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1244 OF 1990

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BETWEEN

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Coram: Hon Hooper, J. in Court

Date of hearing: 6 November 1990

Date of delivery of judgement: 6 November 1990

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JUDGMENT

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1. On the 15th August 1990, the appellant pleaded guilty before a magistrate at Fanling Magistracy in respect of a charge of criminal damage, contrary to section 60(1) of the Crimes Ordinance, Cap.200, Laws of Hong Kong. The particulars of the offence alleged :

"Yee Kau-1am, you are charged that sometime between 1800 hours on the 13th day of February, 1990, and 0900 hours on the 14th day of February, 1990, at DD52, Lot 159, Man Kam To Road, Ta Kwu Ling, New Territories, in Hong Kong, without lawful excuse, did damage 15 vehicles belonging to Yu Chan-woon, intending to damage such property or being reckless as to whether such property would be damaged."

The appellant admitted the brief facts of the case as follows :

"PWl (Male Yu Chan-woon) owned a Chun Yip Motor Limited which deals in the trading of vehicles. Some of his vehicles were parked in a car park at DD32, Lot 159 Man Kam To Road, Ta Kwu Ling, N.T. which was looked after by PW2 (Male Ma Hing-ho). At 1800 hours on the 13th February 1990, PW2 checked the car park and the vehicles parked therein in order and then left. At 0900 hours on 14th February 1990, he returned to the car park and found that windows and windscreens of 15 vehicles (including 11 light goods vehicles, 2 jeeps, one private car and one light bus) in the car park had been smashed and damaged.

2.          PW2 made a report to the police, PW3 (WDPC15543) arrived at the scene and took 19 photographs (exhibit (a)) of the scene and the damaged vehicles. PW1 latter spent $22,700 in repairing the damaged vehicles.

3.        On the 14th May 1990 PW4 (DPC9999) arrested the defendant at Yuen Long. Under caution the defendant admitted he damaged 3 vehicles belonging to PW1 because he has some grudges with PW1 over some business dealings."

In giving the reasons he did for passing sentence the learned Magistrate said :-

"Appellant is aged 36 years and has 13 previous convictions dating back to 1968. The first 9 offences from 1968 to 1982 were all for serious type offences. The 4 offences since 1982 were 3 for gambling and one for assault.

I concluded that the claimed motivation for the offence held minimal value for mitigation of sentence. I concluded that the only possible penalty was an immediate custodial sentence. Giving allowance for Appellant's demonstration of remorse by his guilty plea, and what little credit I could give for the claimed reason for the attack, I concluded that the minimum possible sentence I could impose was one of 9 months imprisonment."

2. The claimed reason for attack as stated in his cautioned statement was that it was to serve as a warning. A friend of his, named Wong Ching, had informed the appellant that he had been cheated and it was suspected that the boss of Chun Yip Motors Ltd was the person who had cheated him.

3. Mr Souyave who appears for the appellant stresses the appellant's plea of guilty and co-operation with the police. Although the appellant appears to have a bad record most of it relates to when he was very young and he has kept out of trouble since 1976 with the exception of a conviction for assault occasioning actual bodily harm in 1984, some 6 years ago. He also points out that although damage to the extent of $22,700 was done, the appellant has always been willing to repay this amount. Furthermore, at the time in question he acted alone.

4. He argues that 9 months' imprisonment is too severe in all the circumstances of this case and that the learned Magistrate erred in taking 18 months' imprisonment as the starting point for this offence.

5. This is a reference to the following comment of the Magistrate at the time he passed sentence :

"The only appropriate sentence for offending such as this is an immediate custodial sentence. I further consider the proper period to be not less than 18 months. But Defendant is entitled to credit for his guilty plea and expression of remorse. I see the cause of the incident to be of little merit in mitigating the offence. But taking those matters into account I believe the sentence can be reduced to 9 months.

On this basis 9 months imprisonment. The compensation is beyond my jurisdiction level so I leave it to Defendant to settle outside the scope of my sentence, which he should do to avoid civil litigation."

6. Mr Souyave further pointed out that because the offence was committed at night, nobody was intimidated. Furthermore, the admission of the appellant was the only evidence against him.

7. Mr Saw for the Crown pointed out that the maximum penalty for such an offence is 10 years' imprisonment and that the discount given for the mitigating factors was too great.

8. Taking everything into consideration I consider that 18 months was too high a starting figure. I consider that 12 months was more appropriate and on the basis of a discount of one third for the migitating factors I reduce the sentence to 8 months' imprisonment.

Representation:

Mr A.A. Souyave inst'd Leung Kin & Co. for appellant Yee Kau Lam.

Mr D.G. Saw, Crown Counsel, for Crown.