HKSAR v. Shahbaz Sarwar

HCMA 553/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 553 OF 2010

(ON APPEAL FROM KCCC 1438/2010)

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BETWEEN

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Before: Hon Wright J in Court

Date of Hearing: 28 September 2010

Date of Judgment: 28 September 2010

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J U D G M E N T

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1.The appellant was convicted, after trial, of a single charge of indecent assault in somewhat unusual circumstances.

2.In the evening on 1 April this year, the female victim walked past the appellant who was sitting outside a bank: he then stretched out his hand and touched and pressed her left breast forcefully.  When the lady concerned scolded him, he stood up and stretched out his arms as if he was going to embrace her.  She said that if he continued, she would report to the police: he then told to her to do so.  She did so.

3.In due course, he was charged.  The Magistrate convicted the appellant after trial.  He made a reference to a case that involved indecent assault on the MTR, in which, the Magistrate noted correctly, the starting point of the usual sentence imposed on a first offender would be between 14-28 days imprisonment. 

4.He noted that the main sentencing element in offences of this nature is one of deterrence.  The Magistrate took the view that this was a more serious offence and took a starting point of 30 days imprisonment.

5.With respect, I take the view that the sentence ultimately imposed was excessive and not the sentence which I would have imposed.  As this is effectively a re-trial before me, I am entitled, even without finding that the Magistrate erred in any way, to impose what I regard as the proper sentence.

6.Consequently, I will allow the appeal against sentence and for the period of 30 days’ imprisonment substitute a period of 21 days.

7.The appellant tells me today that he did not commit the offence.  There was no appeal against conviction.  He is to serve 21 days imprisonment.

Ms Eva Chan, PP of DOJ, for the Respondent

The Appellant, in person