HKSAR v. Cheng, Kwun Yip

HCMA 1251/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 1251 OF 2005

(ON APPEAL FROM KCCC 5956 OF 2005)

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BETWEEN

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Before: Deputy High Court Judge Leong in Court

Date of Hearing: 16 February 2006

Date of Judgment: 16 February 2006

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J U D G M E N T

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1.The Appellant pleaded guilty in the Magistrates Court to three counts of wounding.  He was sentenced to a detention centre.  He now appeals against sentence.

2.The facts as admitted by the Appellant before the Magistrate are as follows:

“Prosecution witnesses PW2 and 4 visited a website and came to know the Appellant who had posted his photograph on the site.  They had exchanges on the website in the course of which, PW2 and 4 criticised the Appellant’s clothes and appearance.

On 4 September 2004, the Appellant agreed to meet PW2.  Later that evening, PW1 – 4 met the Appellant and another man at Silver Cord Games Centre.  They had an argument that resulted in a struggle between the two sides.  The Appellant produced a paper cutter and brandished it around and thereby injured PW1, 2 and 3.  PW5 came to the scene and joined in the struggle.  The Appellant and the man fled.  The matter was then reported to the Police.”

3.PW1, 2 and 3 each suffered multiple cuts over their arms, abdomen and chest.  PW1 was hospitalized for three days and received a total of 75 stitches for the wounds on his body and arms.  PW2 received 8 stitches and PW3 20 stitches for the wounds they suffered in the incident.

4.The Appellant when interviewed by the police stated that he was attacked by the other party and he produced the cutter and brandished it to enable himself to flee from the scene.  He did not know if he had injured anyone.

5.The Magistrate before sentencing the Appellant asked for a report on the Appellant’s suitability for admission to the Detention Centre/Rehabilitation Centre/Training Centre.  The report from the Correctional Services Department said that the Appellant was mentally and physically suitable for admission to any of these three centres.  The reporting officer stated in the report that in the interest of the Appellant’s reformation, a period of disciplinary training coupled with after care supervision is considered to be beneficial to him.

6.Counsel representing the Appellant before the Magistrate pleaded to the Magistrate to consider making a community service order.  This was not accepted by the Magistrate and the Appellant was sentenced to the detention centre.

7.In his reasons for sentence, the Magistrate referred to the report where the Appellant was described as having a good nature without behavioural problems and an outgoing person interested in ball games.  The Magistrate also said that there were letters of support from the Yi Jin Instructor of City University and the Assembly of God Union Church.

8.Be that as it may, the Magistrate considered the injuries sustained by the victims were serious.  He said in his reasons for sentence, I quote:

“The cutter brandished by the Defendant was used indiscriminately.  These offences were by far the most serious I have had to deal with as a Magistrate.  In my view community service order would not reflect the criminality involved in these offences.  They were in my view too serious.”

9.The Magistrate considered the appropriate sentence was to make a Detention Centre Order.

10.The grounds of appeal may be summarized as follows:

1.      The Magistrate failed to consider or to give effect to the Appellant’s guilty plea or to give reasons for his refusal to give such discount;

2.      The Magistrate failed to draw a distinction between wounding with intent and wounding which requires no such intent;

3.      The Magistrate failed to place sufficient weight on the background of the Appellant which includes his young age, clear record, good family support, employment record, willingness of his employer to continue his employment, his guilty plea and genuine remorse and the offence was not premeditated;

4.      By reason of the above, the Magistrate was wrong in failing to consider a Community Service Order.  Miss Liu for the Appellant urged before me that this is a case of impulsive and understandable action but not excusable act of violence which is not accompanied by specific intent to cause injury and the circumstance of this case are similar to the case of HKSAR v Lam Kin Hung, HCMA 11/2002 (unreported), she submits that, according to the probation officer’s report, the Appellant had no behavioural problem and the Appellant is gainfully employed during his bail period and the employer is quite willing to continue his employment.

11.It is clear before the Magistrate sentenced the Appellant, counsel for the Appellant before the Magistrate had urged the Magistrate to consider the Appellant’s guilty plea which indicated the Appellant’s genuine remorse.  Counsel had also referred the Magistrate to all the mitigating factors that are set out in the third ground of appeal.  The Magistrate must have all these in mind when he considered what appropriate sentence he should pass having regard to all these circumstances.  Having regard to the nature of these offences, it would be open to the Magistrate to consider imprisonment as the other appropriate way to punish the Appellant.  The fact that after considering the report from the Correctional Services Department, the Magistrate made a detention centre order indicates that he had adopted a rehabilitative rather than a punishment sentencing approach having regard to all the mitigating circumstances in the case.  This also reflects that the Magistrate had given credit to the Appellant’s guilty plea.  The practice of giving discount would only be appropriate in cases where the court considers imposing a term of imprisonment and has adopted a starting point from which a discount can be made.

12.On the second ground, the charges against the Appellant were wounding charges and the Appellant was sentenced on the basis of wounding offences.  The Magistrate only considered that the Appellant had used the cutter indiscriminately and the injuries suffered by the victims were serious.  The Magistrate neither when passing sentence nor in his written reasons for sentence, said that he considered the case one of wounding with intent.  Also, there is no such evidence.  There is no basis for complaint in this ground.

13.On the third ground, as I have said earlier in this judgment, all the mitigating factors stated in this ground were referred to the Magistrate by counsel for the Appellant and the Magistrate must have considered them, otherwise he would not have taken the more rehabilitative approach in sentencing the Appellant.

14.On the fourth ground, the question is whether in the circumstances of this case, the Magistrate should have obtained a Community Service Order suitability report and considered it before rejecting it and make a detention order.  Ms Cheng for the respondent refers me to the English case of R v Heyfron (1980) 2 Cr App R(S) 30, where the Court of Appeal considered that it would be wholly wrong to deal with an Appellant by way of a Community Service Order where the charge against him was a case of violent assault, despite that he was found to be suitable for such an order.  In the case of Liu Man Kuen [2003] 3 HKLRD 395, a case also referred to me by counsel for the respondent, Mr Justice Lugar-Mawson considered the case of HKSAR v Chow Chak Man & anor [1993] 3 HKLRD 37 which set out the general characteristics of an offender who was most likely to benefit from a community service order.  His conclusion was that the case did not indicate that an offender possessing such characteristics should be dealt with by such an order.  In that case the Appellant was sentenced to 18 months imprisonment for wounding with intent and his appeal against sentence was dismissed even though the Appellant might have been suitable for a community service order.

15.It would appear that every case must be decided on its own facts and if it involves violence, it is unlikely to be appropriate to deal with the offence with a community service order.  If it is apparent that no such order is likely to be made, it would not be wrong for the Magistrate in not obtaining such a suitability report before sentencing the Appellant.

16.In all the circumstances of the case, particularly the serious injuries suffered by the three victims, the brandishing of the cutter indiscriminately, the Magistrate cannot be said to be wrong to pass the sentence he did.  The sentence of detention centre order is neither wrong in principle nor manifestly excessive.  The appeal against sentence is dismissed.

Ms Cancy Liu, instructed by Messrs Y S Lau & Partners, for Appellant

Ms Bianca Cheng, SGC of Department of Justice, for Respondent