The Queen v. Cheng Chun-tim

CAAR000013/1983

IN THE COURT OF APPEAL

BETWEEN

Coram: Hon. Li, Cons & Fuad, JJ.A.

Date: 6th October, 1983

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J U D G M E N T

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Li, J.A. :

1. This is an application for review of sentence. The respondent was detained in early August in the Lai Chi Kok Reception Centre of the Correctional Services Department, having been sentenced to imprisonment for 2 years and l month in respect of a previous offence. He was then transferred to the hospital ward of the Reception Centre for medical treatment of drug withdrawal symptoms.

2. On the 5th of August, the medical officer who visited him considered that he was suitable for discharge, and return to the normal prison ward. One of the warders on duty in the hospital ward approached the defendant and requested him to leave without success. The respondent was lying in bed. A second warder then went to him, put his hand on his shoulder and asked him to leave the hospital ward. The respondent suddenly got up, slapped heavily onto the right face of the second officer and punched this officer's chest several times. There was a struggle. As a result the officer suffered the following injuries: mild swelling of the right face, red bruise on the left front chest, lacerated injury on the right index finger and minor scratch mark on the left middle finger.

3. For this, the respondent was brought before a magistrate, charged with the offence of assault occasioning actual bodily harm. He was convicted on his own plea. The magistrate awarded a sentence of 2 weeks imprisonment to be suspended for 12 months. In his reasons for sentence, the magistrate stated that:

4. Being dissatisfied with the sentence, the Attorney General applies for a review of the sentence on the ground that it is manifestly inadequate and wrong in principle.

5. In answer to this application, the respondent tells us that he attacked the officer concerned solely because the officer slapped him on his face first. That was not one of the agreed facts in the court below. Nor was it raised by the respondent when he was before the magistrate. It is too late to adduce fresh evidence now. Learned counsel for the applicant very fairly informed this court that according to the medical report, at the time of the attack, the respondent still suffered some residual drug withdrawal symptoms.

6. Having heard counsel for the applicant and the respondent, we are of the opinion that the sentence is both manifestly inadequate and wrong in principle. It is manifestly inadequate because at the time of the attack, the respondent was already serving a sentence of 2 years and 1 month. The suspended sentence of 2 weeks suspended to 12 months is literally no punishment or deterrent at all to him or others. The only effect of such a sentence is to deter him from committing another violent crime while he is serving his 2 years and 1 month sentence. We do not feel that such a sentence as imposed is heavier than it would have been attracted in a normal case. It was an unprovoked attack.

7. The sentence is also wrong in principle. A violent attack of this nature, unprovoked, merit an immediate custodial sentence. It was also an attack on an officer whose duty was to main order as well as discipline inside a custodial ward. They require protection in the execution of their duties as much if not more than an ordinary citizen.

8. We are of the opinion that by whatever measure of standard, a 2 weeks suspended sentence is manifestly inadequate and wrong in principle. In normal circumstances, a case of this nature would merit an immediate custodial sentence of 6 months imprisonment. However, having regard to the fact that at the time of the attack the respondent was still suffering from some mild form of withdrawal symptom, his plea of guilty and the fact that this is an application for review, we are of the opinion that immediate sentence of imprisonment for 3 months is adequate. For these reasons, the application is allowed,  the sentence is reviewed. The respondent is sentenced to 3 months imprisonment to run consecutively with the present sentence he is serving.

Representation:

Mr. Alderdice (Legal Dept.) for applicant

Respondent in person