HKSAR v. Lee Bun

HCMA770/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 770 OF 2005

(ON APPEAL FROM TWCC 1950 OF 2005)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 8 November 2005

Date of Judgment : 8 November 2005

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J U D G M E N T

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1.This is an appeal against sentence only.  The appellant was convicted upon his own plea of assault occasioning actual bodily harm, contrary to common law and section 39 of the Offences Against the Person Ordinance, Cap. 212 at Tsuen Wan Magistracy on 19 July 2005.  

2.The facts of the case were that the appellant, at the time of the assault, was serving a sentence of imprisonment at Shek Pik Prison.  He was found by staff of the Correctional Services Department to have attempted to smuggle food from the prison kitchen back to his cell.  The appellant was ordered to go to another cell as a disciplinary matter.  As he walked past the officer who had found the smuggled food, the appellant heat him over the head with a plastic mug.  This was a blow sufficiently forceful to require the officer to have medical treatment for an abrasion caused to the back of his head.

3.The magistrate adopted a starting point of sentence of nine months’ imprisonment and reduced that, on the basis of the appellant’s plea of guilty, to six months’ imprisonment.  The appellant says this sentence was too severe.

4.Assaults upon police officers and CSD officers will in the normal course result in a sentence of imprisonment.  As the magistrate had said in imposing sentence :

“…. prison officers were given a very onerous task in managing prisons filled with convicts.  They must be protected by the law and hence by the courts from violence originated from the prisoners under their management.  Those who dare to raise their fists against a prison officer should expect nothing but a deterrent sentence. ….”

Those comments are laudable.

5.But in the present case, a single blow with a plastic mug was a relatively minor assault.  No significant injury was caused to the victim and the assault was apparently spontaneous.  In my view, a starting point of nine months’ imprisonment was manifestly excessive. 

6.In my judgment, whilst a sentence of imprisonment was appropriate, a proper starting point of sentence would have been 18 weeks’ imprisonment.  Allowing for the appellant’s plea of guilty, a sentence of 12 weeks’ imprisonment should be substituted for the sentence imposed by the magistrate. 

7.The appellant, at the time of sentence, was less than a year into serving a total sentence for robbery and attempted robbery of four years and eight months’ imprisonment.  Rightly the magistrate made the present sentence wholly consecutive to that previous sentence. 

8.Accordingly, I order that the sentence imposed by the magistrate be set aside and a sentence of 12 weeks’ imprisonment be substituted for it.  That sentence is to be served consecutively to the sentence of four years and eight months’ imprisonment the appellant is presently serving.

Ms Anna Y.K. Lai, SGC of Department of Justice, for HKSAR

Appellant in person, present