HKSAR v. Choi Kwok Keung
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HCMA 970/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. 970 OF 2010 (ON APPEAL FROM TMCC 2815/2010) ____________ BETWEEN
____________ Before: Hon Fung J in Court Date of Hearing: 13 April 2011 Date of Judgment: 13 April 2011 Date of Reasons for Judgment: 15 April 2011 ________________________________ REASONS FOR JUDGMENT ________________________________ 1.The Choi Kwok Keung was convicted before a magistrate of one charge of loitering and causing others to be reasonably concerned for their safety or well-being, contrary to s. 160(3) of the Crimes Ordinance (Cap. 200). He was sentenced to one year imprisonment and is appealing against the sentence. 2.The Appellant had previously also appealed against his conviction, but later filed a Notice of Abandonment through his solicitors. There was an application to withdraw the Notice of Abandonment, which was refused and the appeal against conviction stood dismissed. The facts 3.PW1 was the operator of a seafood shop. In August 2010, PW1’s shop front was blocked by a truck. PW1 called the police and they ticketed the truck. After the police had gone, the Appellant sat on a stool in front of PW1’s truck, preventing it from leaving. The police were called again and the Appellant moved. Thereafter, the Appellant started the engine of the truck and put it in high rev emitting a lot of noise and fumes, and he shouted foul language at PW1’s customers, telling them not to buy from PW1. Within an hour or so, 2 more trucks arrived to park in front of PW1’s shop and the drivers said hello to the Appellant. The Appellant kept revving the engine and shouting foul languages at the customers. 4.3 co-defendants (D2 to D4) arrived, nodding slightly with the Appellant. They spoke foul language and acted in bad attitude towards PW1’s customers, saying PW1’s seafood was not fresh. D4 pretended to have slipped and lied down outside PW1’s shop. PW1 called the police again and the Appellant and the co-defendants were arrested. Reasons of the Magistrate 5.The Magistrate viewed the matter very seriously. She added that the Appellant was somehow connected with demanding money from PW1’s neighbours. She said a deterrent sentence should be passed. Grounds of appeal 6.The Perfected Grounds of Appeal can be summarised thus:
Discussions 7.Mr Tsang, for the Respondent, did not seek to argue that the sentence was not on the high side. But he submitted that although no triad element and no violence was involved, it was a very bad case of bullying which should be viewed by the Court seriously. Hence, the sentence is not manifestly excessive and should not be tampered with. 8.On the so-called “extortion” point, it arose in the context of explanation of the Appellant’s fear in that he heard other people had been demanded money by local bullies. It was objected to by counsel at the trial. Mr Chandler, for the Appellant, submitted that there was no proper foundation for extortion to be established or be linked with the Appellant. Regardless of this point, the sentence of one year imprisonment is manifestly excessive. 9.The Appellant has been in prison since being sentenced on 8 December 2010. He had applied for bail pending appeal but it was refused by a judge of the Court of First Instance. The Appellant has been in prison for over 4 months, and I consider a sentence effecting his immediate release is appropriate in all the circumstances. Conclusion 10.In the event, I reduced the sentence to one which will effect the immediate release of the Appellant.
Mr Michael Tsang, SPP (Ag) of Department of Justice, for the Respondent Mr James P Chandler, instructed by Messrs Littlewoods, for the Appellant | |||||||||||
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