HKSAR v. Lee Kin Wah

HCMA 990/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 990 OF 2009

(ON APPEAL FROM KCCC 1773/2009)

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BETWEEN

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Before: Hon  Wright J

Date of Hearing and Judgment: 9 April 2010

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J U D G M E N T

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1.The appellant gave notice of his intention to appeal his conviction on a single charge of inflicting grievous bodily harm and the imposition of a sentence that he undergo imprisonment for a period of 18 months. He was convicted after trial by Mr. D I Thomas. The appellant was represented at trial. In these proceedings he is represented only in regard to the appeal against sentence. He has today abandoned his appeal against conviction which is consequently dismissed.

2.The prosecution case was that the appellant had assaulted his then girlfriend by punching her in the eye. She testified as to the course of events. She said that they had both been out drinking. After they returned home, there was an argument between them. Witness statements from doctors who examined and treated her were produced in evidence. Those reports reflected injuries which were consistent with her version of events, revealing amongst other things that there was a depression of a bone fragment some 1.2 to 1.6 cm in size into the right maxillary sinus. The injury required surgical intervention.

3.Insofar as the appeal against sentence the complainant’s evidence, which was accepted by the magistrate, reveals that this was an unprovoked assault by a mature male on a substantially younger female. Although there was but one blow struck which did not involve the use of a weapon, the nature and extent of the injury caused was significant demonstrating that substantial force had been used. In addition to the necessity for surgical intervention, the eye was bruised and swollen and resulted in double vision for an ongoing period. That the assault occurred after both the complainant and the appellant had consumed alcohol in no way excuses the appellant's conduct.

4.This assault may be regarded properly as falling into the category of domestic violence, which is to be deprecated in the strongest terms and deserving of a deterrent sentence.

5.There is one factor, however, which emerged in the evidence of the complainant which needs to be taken into account and which perhaps gives an indicator of their relationship at that time: she decided not to go to hospital after the attack on her because, she said, she was aware that a  police officer would be on duty in the accident and emergency department and she did not wish the appellant to be arrested.

6.This, it emerged, was because the offence was committed only a matter of months after the appellant had been bound over in respect of a previous assault on her. The magistrate regarded as a significant feature, and rightly so, the fact that this was the second assault carried out by the appellant on the same person within a short period of time. It is incorrect to say, as has been suggested, that to consider this feature is to punish the appellant twice for his first transgression: it demonstrates both a continued, settled course of conduct on the part of the appellant towards the complainant and a complete disregard of the order made against him, which served as a warning to him by the court.

7.I note, too, that the appellant has two further previous convictions, albeit long ago, one of which was for a crime of violence for which he was committed to Training Centre. The appellant remains a man who resorts easily to violence despite that experience.

8.I am told that the relationship between the appellant and the complainant has now ceased.

9.It has repeatedly been said by courts on appeal that, save where there have been decisions in the form of tariffs or guidelines comparison with other decisions for the purposes of sentence are of scant assistance to her than for the purpose of affording a general indication of the type of sentence regarded as appropriate. It is perfectly clear that an immediate custodial sentence is an appropriate sentence in this matter.

10.The sentence is not that which I would have imposed: as this is an appeal from a magistrate, it is open to me to substitute what I regard as the appropriate sentence without finding that the magistrate in any way erred in his assessment whilst bearing in mind, of course, that the magistrate would have had the flavour of the matter having conducted the trial.

11.In my judgment the appropriate sentence is one of 12 months imprisonment. The appeal against sentence is allowed to that extent.

Ms Mickey Fung, Senior Public Prosecutor, Department of Justice, for the Respondent.

Mr. Paul LEUNG, instructed by Director of Legal Aid for the Appellant.