The Queen v. Yee Wan-pang

HCMA000670/1986

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HEADNOTE

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Criminal law and procedure - common assault - offender with previous convictions, the last of which occurred more than 11 years before sentence above normal tariff - punishment based on record is wrong in principle.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 670 OF 1986

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BETWEEN

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Coram: Deputy High Court Judge Henry Wong

Date of hearing: 13th August 1986

Date of delivery of judgment: 13th August 1986

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JUDGMENT

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1. The appellant appeared before a magistrate on 10th May 1986 upon a charge of "common assault". He pleaded guilty, was convicted and sentenced to 9 months' imprisonment. He now appeals against sentence.

2. Agreed facts revealed that on 21st January 1986 the appellant, apparently on account of trivial matters, punched the victim at the corner of his left eye, pushed him onto the ground and kicked his chest. Shouts for help were raised and the appellant hurriedly left the scene before the arrival of neighbours. After an interval of a few months the appellant surrendered himself to Sau Mau Ping police station where he was arrested and charged with the present offence.

3. In his Statement of Findings the learned magistrate said:

"The Appellant had a record including two convictions for robbery and one for wounding. He was clearly no stranger to violence. I took the view that there was little or no provocation in this case. Why the victim should be responsible for a noise in the Appellant's home was never made clear by the Appellant. Why the Appellant should be annoyed when the victim said he recognized him was not clear either. The case was one of an unprovoked and vicious assault on the victims No explanation of assault was offered. The victim did not offer the Appellant any violence and was kicked when he was on the ground. Accordingly I sentenced the Appellant to 9 months imprisonment though I did refer his daughter to the Social Welfare Department since his mother who, as I recall, was looking after the daughter, had herself been admitted into hospital on the previous night."

4. Mr. A. Tsang, appellant's counsel advanced, inter alia, the argu-ment that from the first two sentences of the Statement of Findings at least a suspicion had arisen that the learned magistrate sentenced this appellant, not merely for the common assault, but for his record.

5. It can be said that sentencing is a difficult task facing a judge or a magistrate and that various matters have to be taken into account before deciding on an appropriate penalty. General advice on this problem is set out in "Patrick Richard Fraser v. R" (1982) Cr. App. R 255. May, LJ. said at p. 257:

"When courts are approaching the problem of sentence, at any rate in serious cases such as this, the first task is to decide what is the appropriate sentence for the offence of which the defendants have been convicted. Having so decided it is wrong to make any increase in that sentence because of the offender's previous bad record. It is equally wrong to allow any substantial mitigation in the case of a man with a bad record. However, where the record is good, it may provide substantial mitigation. As the Court said in a case from which a dictum is quoted at page 198 of the second edition of D.A. Thomas Principles of Sentencing: 'Men are not sentenced on their records. They are, sentenced for their offences. If they have got bad records then nothing can be taken off by way of mitigation, while if they have not got bad records a great deal can be taken off.' "

6. The appellant, aged 34, admitted having five previous convictions, of which two were for possession of dangerous drugs, two for robbery and the last one, which took place as far back as 29th December 1973, was for wounding. For those offences he had undergone various types of punishment, ranging from a binding over order to probation, detention in a Training Centre and jail terms.

7. The punishment meted out to an offender on facts which bear some analogy to the present case is in "David Neil Green v. R" (1981) Cr. App. R 245, headnotes of which read:

"...The appellant who had a long record of offences covering almost 25 years, pleaded guilty to theft, forging a valuable security, uttering a forged document and attempting to obtain property by deception. He had stolen a cheque which had arrived in a letter for another person who lived at the same address as the appellant, signed the name of the payee on the back of the cheque, and attempted to cash it. Sentenced to 18 months imprisonment. Held, the appellant had been sentenced for his record, rather than for the offences committed. No prisoner is to be sentenced for offences which he has committed in the past and for which he has already been punished. The proper way is to decide a sentence which is appropriate for the offence for which the prisoner is before the court; then in deciding whether that sentence should be imposed or whether the court can extend some leniency to the prisoner, the court must have regard to those matters which tell in his favour, and equally those matters which tell against him, in particular his record of previous convictions. These matters have to be balanced up to decide whether the appropriate sentence to pass is one at the upper end of the bracket or somewhere lower down. There was nothing in the present case which would justify the extension of any leniency to the appellant, but the sentence passed went beyond what was appropriate to the offence."

8. In view of the fact that (1) no evidence was produced before the learned magistrate to show that the victim had suffered severe injuries from the appellant's assault, (2) the offence is only a misdemeanor, which carries a maximum imprisonment for one year (Section 40 of Offences against the Person, Cap 212), (3) there was a lapse of 11½ years since the appellant 's previous conviction and (4) a plea of guilty had been entered, I am inclined to think that the learned magistrate sentenced the appellant on his record rather than for what the appellant actually did.

9. Reference was also made by Mr. Tsang to two cases "R v. Liu Chi-hung" Magistracy Criminal Appeal No. 650 of 1985 and "AG v. Hon Lit-Horn", Application for Review No. 8 of 1982 in which convictions of common assault attracted, not custodial sentences but monetary penalties.

In the light of the foregoing I find that the sentence of 9 months passed on the appellant for common assault went beyond the normal tariff which was appropriate for that offence. I therefore come to the conclusion that justice of the matter can be met by substituting for the sentence of 9 months' imprisonment, of which the appellant has now served over a month before he was released on bail pending appeal, such sentence as will mean his immediate release. The appeal is allowed to that extent.

Representation:

Mr. Albert Tsang, instructed by D.L.A. for appellant

Mr. S. R. Mason-Parker, Senior Crown Counsel for respondent