HKSAR v. To Herman Singh

HCMA001042/2002

HCMA 1042/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1042 OF 2002

(ON APPEAL FROM KTCC 3482/2002)

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Coram: Hon Beeson J in Court

Date of Hearing: 16 April 2003

Date of Judgment: 16 April 2003

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J U D G M E N T

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1.The Appellant was found guilty after trial in the Magistracy of one count of Assault Occasioning Actual Bodily Harm. He was convicted on 5 September 2002 and remanded to 19 September 2002 for Probation, Community Service and psychologist's reports. The Appellant was represented at trial.

2.The Magistrate, having considered the reports, sentenced the Appellant to 4 months' imprisonment. He also activated a Binding Over Order imposed on 6 March 2002, in KT/MP 115/02, in the sum of $1500.00. The period of that order was 12 months and the instant offence was committed on 6 April 2002, within its currency.

3.On 19 September 2002, the Appellant was bailed pending appeal; a reporting condition was imposed. At that time he was subject to a Community Service Order for an earlier offence.

4.General grounds of appeal were filed on 19 September 2002. On 27 November 2002, the first date fixed for the appeal, an application for a full transcript of the trial was approved, by Deputy High Court Judge D Pang. The appeal was adjourned for 3 months to enable the Appellant to raise money to employ counsel and was refixed to 28 February 2003.

5.On 25 February 2003, Legal Aid Department advised the court that they could not make a decision on the legal aid application as they were still waiting for the appeal bundle.

6.On 27 February 2003, Legal Aid Department advised they had received the appeal bundle, but did not have sufficient time to make a decision on the application.

7.On 28 February 2003, the matter came before the Hon V. Bokhary J. The Appellant was absent at 11:00 am and finally attended the court at 12:58 pm. He claimed he had gone to the wrong court. A new date was set for the appeal, to be not earlier than 4 weeks from 28 February 2003. At the appearances on both 27 November 2002 and on 28 February 2003, bail was extended.

8.The appeal hearing was refixed for 9 April 2003. On that day, the Appellant appeared unrepresented before me, having been refused legal aid on 20 March 2003. The Appellant said he did not know much about the case and wanted further time to employ a lawyer. He said he needed only 1 week more so his lawyer could read the case file. The appeal hearing was adjourned to 2:30 pm on 16 April 2003 and bail was extended. The Appellant was warned no further adjournment would be granted and that if he was unable to find a lawyer he would be required to present his appeal in person. The Appellant requested a Chinese translation of the full transcript; that was refused. The Appellant was reminded of his bail terms.

9.On 16 April 2003, the Appellant did not attend court. When the Respondent tried to call the Appellant on his mobile telephone, whoever answered appeared, deliberately, to hang up. A Warrant of Arrest was requested.

10.I noted this appeal had been adjourned several times. The Appellant had been warned about his dilatory behaviour. The appeal had been outstanding since 19 September 2002 and several adjournments had been granted to enable the Appellant to be represented properly. It appeared that the Appellant was not taking any proper steps in pursuing his appeal, but was using delaying tactics, hence his absence today. I shall consider the merits of the appeal.

11.The offence was an assault on an ambulance driver. An ambulance on an emergency call found its access to the patient's estate blocked by a private car, which was behind a taxi from which Appellant was alighting. Appellant took umbrage on hearing a vehicle horn and went to the ambulance placing his tool box in front of it. There does not appear to have been any basis for his attributing the sound to the ambulance. He abused the ambulance driver, who was awaiting the return of two colleagues, grabbed his right hand through the vehicle window and punched his face, causing an abrasion to the victim's hand and tenderness to his face. The driver, who was denuded of his spectacles and watch in the attack, managed to hang on to Appellant until police arrived. Police noted the Appellant appeared to have been drinking.

12.The Appellant elected not to give evidence. He called a witness who did no more than confirm the Appellant's use of foul language and claim that the position of the tool box was near the driver's door, rather than in front of the ambulance. The defence suggested that the Appellant put his hand through the window only to point at the driver and that any contact, if such had occurred at all, was accidental. The Statement of Findings and the transcript show there was ample evidence on which the Magistrate could find the Appellant guilty of assault occasioning actual bodily harm.

13.The Appellant had a poor record which limited the Magistrate's sentencing options. For an offence of theft, he was placed on Probation in 1993, but breached the probation order in 1994 and was sent to Training Centre. On 7 June 1996, he was convicted of Assaulting a Police Officer and received an absolute discharge. On 19 July 1999, he was convicted of Criminal Intimidation and sentenced to 3-months' imprisonment suspended for 12 months. A Theft offence dealt with at the same time attracted a fine of $1,000.00. On 6 March 2002, the Appellant had been bound over until 5 March 2003. The binding over related to a dispute and fight that he had with his younger sister's boyfriend.

14.On 11 June 2002, the Appellant was convicted of; failing to comply with a traffic sign and fined $1,000.00; conspiracy to pervert the course of public justice and ordered to complete 180 hours community service; had been fined $1,500.00 for driving without a licence; was fined $2,000.00 and disqualified from driving for 12 months for using a motor vehicle on a road without third party insurance and was fined $1,000.00 for driving an unlicensed vehicle. By the time he appeared before this Magistrate, only 16 hours of the Community Service Order had been completed.

15.This sentence of imprisonment was inevitable given the record of this Appellant, his poor CSO performance and the content of the reports considered by the Magistrate. When sentencing the Magistrate took into account the circumstances of the offence noting that the Appellant had deliberately interrupted the ambulance team in their emergency work and had persisted in his obstructive conduct. He adopted a starting point of 6 months imprisonment and reduced the sentence to 4 months, to recognize appellant's act of bravery in a fire that had occurred a few months before.

16.Given the nature of this offence and Appellant's previous sentencing background the Magistrate's sentence is neither excessive nor wrong in principle.

17.Having considered the case, these appeals against conviction and sentence are dismissed. I order that a Warrant of Arrest is to issue and on his arrest, the Appellant is to serve the sentence imposed for this offence. The cash bail is ordered to be estreated.

Representation:

Mr Ned Lai, GC, for HKSAR

To Herman Singh, the Appellant, absent