HKSAR v. Kam Kwai Jo Joel

HCMA169/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 169 OF 2008

(ON APPEAL FROM KCCC 7506 OF 2007)

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BETWEEN

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Before : Hon Saw J in Court

Date of Hearing : 7 May 2008

Date of Judgment : 7 May 2008

Date of Handing Down Reasons for Judgment : 22 May 2008

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REASONS FOR JUDGMENT

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1.On the 9 January 2008 the appellant was convicted after a trial before Mr Peter Law Magistrate of one charge of common assault.  He was sentenced to be imprisoned for 9 months.

2.Initially he appealed both his conviction and sentence.  On 9 April 2008 he abandoned his appeal against conviction.

3.On 7 May 2008 I dismissed his appeal against sentence and indicated that I would hand down my reasons in due course.  These are my reasons.

Background

4.The appellant was one of two defendants who appeared before the magistrate charged with common assault.  The appellant’s co-accused was acquitted.  The appellant was the 2^nd defendant in the trial.

5.The trial was conducted in Cantonese.  On 7 March 2008 Mr Justice Tong gave his approval for the appellant’s appeal to be conducted in English.

6.The circumstances which gave rise to the charges were centered around events which took place in the early hours of 1 November 2007 at what the magistrate describes as “a pub” named “Funky Town” located in Observatory Road, Tsim Sha Tsui.

7.Around 4:30 a.m. that morning a heated argument developed between two of the patrons inside Funky Town.  One of them, a woman was apparently affected by alcohol and allegedly attacked the other, a man.  The proprietor tried to intervene and was also injured.  In order to stabilise the situation the woman was ejected from the premises and the front metal gate was closed to ensure that she could not return.  The man for his part remained inside with the proprietor and other customers.  There was evidence that the woman was later observed kicking the metal gate and overheard to be speaking on her mobile telephone saying words to the effect “blowing the whistles” and “come to Observatory Road”.  That woman was the other person charged as a consequence of the events of that morning.  She was the 1^st defendant in the trial.

8.The particulars of the charge the appellant faced were that :

“... on the 1^st day of November, 2007, outside Funky Town Bar, Ground Floor, 10 Observatory Road, Tsim Sha Tsui, Kowloon, in Hong Kong, you together with other person not in custody assaulted SIN Chun-wai.”

9.Sin Chun Wai (“Mr Sin”) was the proprietor of Funky Town.  Some time after the 1^st defendant had been ejected from the bar and after she had been overheard making the comments she did over the telephone, two groups of men — some 10 in all, arrived outside the bar.

10.This group was shouting and demanding that the man earlier involved in the dispute with the 1^st defendant come out to the street.  Eventually two of them managed to gain entry and rushed into the bar.  The proprietor Mr Sin was initially verbally abused and then punched on the face by one of the group.  That person was the appellant.  Mr Sin was further assaulted by others in the group as were members of his staff.  Eventually Mr Sin and his staff were able to close the door of the bar and the police were called.

11.The appellant was arrested nearby some time later and identified as being one of the members of that group and in particular as being the one who punched Mr Sin on the face.

12.In the course of the trial the appellant denied any involvement in the incidents of that morning and gave evidence and called a witness to this effect.  It suffices to say that he was disbelieved.

13.Before sentencing, the magistrate obtained a Probation Officer’s Report in which in response to the Probation Officer’s questions the appellant maintained that he was not involved in the events of the morning of 30 November 2007.  What did emerge from that report and was also in evidence in the trial was the fact that the 1^st defendant was a friend of the appellant’s sister who had in turn given evidence on his behalf in the trial and was likewise disbelieved.

14.The defendant was born on 10 February 1981 and is now 27 years of age.  He has a criminal record which records his first offence of burglary at age 12.  In 1997, he was sentenced to Training Centre for offences of robbery and wounding and was again convicted in 1998 for assault occasioning actual bodily harm.  In the year 2000, he was convicted of fighting in a public place.  In 2007 he was convicted of possession of dangerous drugs.

The perfected grounds of appeal

15.Ms Panesar, counsel for the appellant, suggests that the sentence of 9 months’ imprisonment (after trial) was manifestly excessive for the following reasons :

(i)      In mitigation the appellant admitted his involvement in the offence.

This is correct but it ignores the fact that the defendant had given evidence in his trial denying any involvement.  Even after had been convicted he maintained this denial when interviewed by the Probation Officer.  He did eventually through his counsel acknowledge his guilt but it could by that time afford him little or no credit.

(ii)      The injuries sustained by the victim were minor.

This is true, and was acknowledged by the magistrate.  Had they been more serious he would have been charged with a more serious offence.

(iii)     No weapons were used.

Again this is true, which is why the offence was common assault.

(iv)     The offence and the circumstances were not the most serious.

What must be remembered is the fact that this was on any account a call to arms by the co-accused — and in response to that call the appellant and at least 9 to 10 others responded and did so with violence.

16.There is no merit in these grounds of appeal.

17.Ground 2 alleges that the magistrate erroneously held that the appellant was the 1^st assailant to attack PW1 and was the initiator of the fight which followed.

18.In his reasons for verdict the magistrate said this — (when referring to when it was that the group of 10 odd men rushed into the bar) :

“At that time someone — not D2 (the appellant) scolded Mr Sin for poking his nose into others’ business.  A man D2 (the appellant) was standing at the back of the group suddenly went up and punched at the left cheek of Mr Sin without saying anything.  Then the group of men outside went up together to attack Mr Sin.”

19.The magistrate found and this is not now challenged that the first punch was thrown by the appellant.  Up until this blow by the appellant the confrontation had been non-violent albeit abusive.  There is no doubt that the escalation into violence was a direct consequence of the appellant’s blow to Mr Sin’s face.

20.This ground of appeal is without merit.

21.When sentencing the appellant, the magistrate acknowledged that Mr Sin’s injuries were minor.  He did, however, correctly, in my opinion, consider relevant the fact that :

(i)      Mr Sin was assaulted by a group of men including this appellant without any provocation on his part; and

(ii)      the appellant was the first to strike Mr Sin.

22.He took the view that notwithstanding the injuries inflicted this was a serious case of assault.  He was right to do so.  Whilst the maximum penalty for this offence is 12 months’ imprisonment, what determines the gravity of an individual offence is not the extent of the injuries alone — albeit of course that this may be a very significant aggravating factor.

23.This was, on any account, a call to arms by the 1^st defendant and the appellant together with a number of other men responded to that call.  This is, to my mind, a significant aggravating factor.

24.In the present case, the magistrate took the view that a sentence of nine months’ imprisonment was appropriate.  I do not consider that he was in error to do so.

25.The appeal was dismissed.

Mr Vincent WONG, SGC of the Department of Justice, for HKSAR

Mrs Mahinder PANESAR, instructed byMessrs Francis Kong & Co., for the Appellant