HKSAR v. Yu Kin Lun & Another

HCMA 457/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 457 OF 2004

(ON APPEAL FROM TMCC 1048/2004)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 7 September 2004

Date of Judgment: 7 September 2004

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J U D G M E N T

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1.This is an appeal against sentence, the two appellants were charged with a joint charge of common assault and upon pleading guilty they were sentenced to 14 days’ imprisonment each.

2.The admitted facts show that in the early hours of the morning, the victim had picked up the two Appellants from Leung King Estate taxi stand.  During the journey, a dispute arose.  There was swearing by the two defendants at the taxi driver.  As both appellants seem drunk, the taxi driver then stopped his taxi outside the Kam Wah Shopping Arcade in Tuen Mun because he was afraid to continue the journey and made a report.  The two appellants then left the taxi without paying the fare according to the brief facts.  And the taxi driver chased them and he was then punched and kicked.  As a result of this assault the taxi driver suffered tenderness on his scalp and right chest wall.

3.It is clear that the learned Magistrate was made aware that both appellants had clear records.  In mitigation, Mr Ray, the counsel appearing on their behalf had also submitted that both Defendants had been intoxicated at the time.

4.It was pointed out that counsel had drawn to the notice of the learned Magistrate that the fare was paid and it was paid before the fight took place.  Whereas the brief facts of the case say that both Defendants had left the taxi without paying the fare.  Initially this Court was surprised, upon reading the appeal bundle, that neither the learned Magistrate nor counsel for both the prosecution and the defence had noticed this apparent discrepancy.

5.As Mr Grounds pointed out, it was in Court 1 in the Magistrate’s Court and Mr Grounds’ submission is that obviously, the people in court must have been in undated with cases at that time and it could have slipped their notice.

6.Mr Shiu, however, pointed out that there is a difference because counsel representing both accused had said the fare was paid before the fight took place so it is not in contradiction to the brief facts that the fare was not paid when the both Defendants left the taxi.  It appeares that the learned Magistrate had understood that to be the case because in the reasons for sentence at paragraph 4, the learned Magistrate did mention this mitigation and he said “I was told in mitigation that the defendant had paid the fare before the attack.”

7.However, Mr Grounds argued that even taking the prosecution case at its highest, the 14 days’ imprisonment for both appellants, in the circumstances, were manifestly excessive.

8.Now, I have considered, of course, that taxi driver in Hong Kong has to be protected, but one has to look at the circumstances of each case.  The facts were, and it seems to be accepted by the prosecution, that both appellants were intoxicated and an argument had arisen inside the taxi.  The taxi was stopped by the taxi driver himself without the defendants asking for the taxi to be stopped.  So it is not the case of the defendants asking for the taxi to be stopped so that they can run off without paying the fare.

9.It is clear that when the defendants left the taxi, emotions were high and made even higher because of their intoxication, but, that is no excuse.  The connection is, is their behaviour of such gravity that they should be sentenced to a term of imprisonment immediately.  Certainly their conduct is not to be condoned and should be looked at seriously.

10.Is this sort of behaviour to be punished only with an immediate custodial sentence or is there another form of sentence that will be of benefit to the community and also give the defendants a chance to consider their actions and to give back to the society what harm they had done that night.

11.I accept Mr Grounds’ submission that this was a spur of the moment occurrence and it was out of character and that the injury was of a very minor nature.  I accept that in considering sentence the learned Magistrate, in these circumstances, should have called for background reports on the both defendants’ probation reports and also community service order reports.

12.I therefore find that the 14 days’ imprisonment was manifestly excessive in the circumstances and I therefore allow the appeal against sentence and now order probation officer’s reports and community service order reports for both appellants.

13.Therefore, the sentence will be adjourned for 14 days to 21^st September, at 9:30 am and bail may be continued on the same terms.  I also wish to thank both counsel for your assistance in the case and for the care that both counsel had taken in their written submissions.

Mr Gavin Shiu, SADPP, of Department of Justice, for the Respondent

Mr Christopher Grounds, instructed by Messrs Henry Wan & Yeung, for the 1^st and 2^nd Appellants