Lai Siu Wa and Another v. The Queen

CACC000475/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 475 OF 1973

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Coram: Pickering, J.

Date of Judgment: 30th July, 1973.

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JUDGMENT

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1. The two appellants were charged with assault with intent to rob. The learned magistrate, finding the assault proved, but being of the opinion that there was insufficient evidence of any intent to rob, very properly convicted the appellants of common assault as he was entitled to do under the provisions of the schedule to the Theft Ordinance (Cap. 210).

2. Each appellant was sentenced to 15 months imprisonment.

3. That sentence was, ultra vires the powers of the learned magistrate since, under s.40 of the Offences Against the Persons Ordinance, the maximum term of imprisonment upon conviction for common assault is one year. The certificate of conviction placed before the learned magistrate, in each case, certified conviction both of common assault and under s.39 of the Offences Against the Persons Ordinance, that is to say conviction for assault occasioning actual bodily harm, under which section the maximum term of imprisonment is three years. The certificates were incorrect. The learned magistrate had not found the appellants guilty of assault occasioning actual bodily harm and indeed, could not have done so since the victim said in evidence that he suffered no injury. The conviction was for common assault only and the maximum term of imprisonment one of one year.

4. The first appellant appealed against both conviction and sentence. Mr. Howell, who appeared for the appellant, wasted no time in telling the court that he could not argue the appeal against conviction. In regard to sentence, however, he argued not only that the sentence imposed was outside the jurisdiction of the learned magistrate but also that the maximum sentence permissible under s.40 of the Offences Against the Persons Ordinance, namely one year, would, in the circumstances of the present case, be excessive.

5. The facts of the assault were that the victim was approached by the two appellants in the street, addressed in minatory tones by the second appellant and kicked once in the stomach by the first appellant. The fact that the victim was immediately able to run away suggests that the kick in the stomach was not a severe one. He was overtaken by the two appellants and pushed into a stairway where a struggle ensued in the course of which he was hit in the back with an aerated water bottle. This was the limit of the evidence in regard to blows sustained by the victim, who said he received no injury.

6. There is no merit in the appeal of either appellant against conviction and those appeals are dismissed. The second appellant has not appealed against sentence, but since he has been made the subject of a sentence in excess of the maximum permitted by law, it follows, as Mr. Duckett, for the Crown, readily agreed, that I must treat his appeal as being also against sentence.

7. On the question of sentence I agree with Mr. Howell's contention that this was not an unduly serious assault and does not merit the maximum permissible sentence of twelve months imprisonment. The appeals against sentence are allowed; the sentences of 15 months imprisonment are set aside and substituted by sentences of six months imprisonment. Since both appellants have been in prison for more than four months, the substituted sentences should result, assuming the appellants to have been of good behaviour in prison, in their immediate release.

Representation:

Howell of Gunston & Chow for 1st appellant

2nd appellant in person

Duckett, S.C.C., for respondent.