George William Agar v. The Queen

CACC000392/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 392 OF 1971.

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Coram: Pickering, J.

Date of Judgment: 28th July 1971.

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JUDGMENT

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1. The appellant, who is a Gunner in the Royal Artillery, pleaded guilty to a charge of common assault and was fined $800 and ordered to pay compensation of $200 to the complainant. The appellant was allowed 14 days to pay, with an alternative of 3 months' imprisonment, and he appeals against that sentence.

2. The facts of the case as presented to the court below were that at 11.00 p.m. on the 16th May 1971 the complainant went to Pakly Hall Restaurant in Fanling and drank beer at the bar. Beside him at the bar wore several European men and two Chinese men unknown to him but with whom he spoke. At 1.15 a.m. on the 17th May there was an exodus from the restaurant, which left the complainant sitting with the appellant in front of the bar. At 1.30 the appellant spoke to the complainant and accused him of having teased him in Chinese earlier on. The appellant then punched the complainant and, taking up a glass tankard from a table, threw it at the latter who ran into the kitchen. There is no evidence that the tankard struck the complainant, but at the stage at which he ran into the kitchen he was bleeding from his left ear. The appellant pursued the complainant and threw a porcelain ashtray at him. Again there is no evidence that the ashtray hit the complainant, who ran out of the kitchen with the appellant in pursuit holding another glass tankard.

3. The complainant escaped over a fence and reported the matter at the police station, whereupon police went to the restaurant and arrested the appellant. The complainant was admitted to Queen Elizabeth Hospital, where he remained for 2 days under observation.

4. The appellant was described by the prosecution as a trained boxer, a description which Major Clarke, who defended him, said meant nothing more than that he had boxed from time to time in his Army career.

5. In mitigation it was stated that the appellant had been provoked in this bar from the evening of the 14th May when a waitress had called him "a fucking English bastard" and his mother "a bitch and a bastard". On the evening in question the appellant had visited the restaurant at about 9.00 p.m. and sat at the bar, where a group of Chinese seated near to him gave the impression that they were laughing at him - gesticulating and pointing at him. According to the appellant, he asked one of the Chinese if he was looking for trouble and received a reply in the negative accompanied by giggling from the group. It was at this stage, according to the appellant, that he stood up and struck one of the Chinese with his fist. The appellant expressed his apologies to the court and was said to have always been praised for hard work, co-operation, honesty and bearing and to be considered as N.C.O. material. His disposable weekly pay is approximately $137.

6. The learned magistrate expressed the view that the appellant was fortunate not to have been charged with assault occasioning actual bodily harm and said that but for the fact that he had pleaded guilty and might well have imagined that he was being laughed at, the magistrate would have seriously considered a custodial sentence without the option of a fine. In the result, the appellant was fined $800 and ordered to pay the complainant $200 compensation. Both these sums were to be paid within 14 days.

7. Major Clarke, who also appeared upon the appeal, referred to various passages in the magistrate's Statement of Findings which he suggested went further than was warranted by the statement of facts put forward in the court below. Thus the magistrate said that assuming the appellant was telling the truth about the insulting behaviour of the waitress, he found it extraordinary that the appellant should return to the restaurant unless he were "looking for further insults and trouble", and went on to say the impression he had was the appellant was "aggressive and looking for trouble". The magistrate further said that he had difficulty in accepting that the complainant behaved in any way provocatively and considered it far more likely that the appellant went to the bar "spoiling for a fight", and suggested further that the fact that instead of taking his custom elsewhere the appellant chose to return to the same bar where he had been insulted indicates that either he was not in fact insulted as he claimed or that he continued to go there in "the hopeful expectation that he might put his pugilistic qualities to the test".

8. I am constrained to observe that these various observations do indeed tend to go further than is justified by the statement of facts put before the court. They are made not on the basis of observation of the appellant in the witness box, but simply on the strength of the prosecution's statement of fact countered by a plea in mitigation, which I should have thought a flimsy foundation for such expressions of opinion.

9. I was informed by Major Clarke that when the fine and compensation payable were announced, the magistrate was asked for 28 days in which to pay, whereupon he enquired whether or not it was possible for the appellant's unit to pay in the first place. He was told that under Military regulations it was not possible for fines to be paid out of public monies and replied that he was not concerned with Military regulations and that if the money was not paid within 14 days the appellant would go to prison.

10. It is, of course, a truism that the amount of any fine imposed should bear a relation to the ability to pay and the same principle, as it seems to me, must apply to any period of grace allowed for payment of a fine. In the present instance, the appellant was subjected to monetary penalties which amounted to approximately one month's disposable pay and told that if payment were not made within 14 days he would go to prison. Suprisingly, a warrant of commitment was actually signed by the learned magistrate. I say surprisingly having regard to the sequence of events which was: -

I am at a loss to understand why the warrant of commitment should have been signed immediately upon the expiration of the period of grace in the light of the fact that a notice of appeal had been filed 8 days previously. True, under s. 55(1) of the Magistrates' Ordinance (Cap. 227) it was lawful for the magistrate to issue his warrant, but it was certainly not mandatory. The period of time allowed for payment of the fine can fairly be described as somewhat unrealistic in the light of the appellant's ability to pay and the issue of the warrant, in the face of an appeal and without any evidence of the likelihood of the appellant leaving the jurisdiction. was in my view harsh.

11. Whilst no doubt the magistrate was justified in taking a reasonably serious view of this case, I am fully satisfied that all in all the penalty imposed was too severe and was possibly coloured by opinions of the magistrate which were not wholly warranted in the light of the known facts. The order for payment of $200 compensation will stand but the appeal succeeds to the extent that the fine of $800 will be reduced to a fine of $400.

Representation:

Major Clarke for appellant

Duckett S.C.C. for Crown.