HKSAR v. Vy Van, Thang

HCMA 547/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 547 OF 2011

(ON APPEAL FROM STCC 2915/2011)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 1 September 2011

Date of Judgment: 1 September 2011

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J U D G M E N T

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1.The appellant had pleaded guilty in the Magistrate’s Court to one charge of Assault Occasioning Actual Bodily Harm, and the particulars of which are that he had punched the victim (PW1) in the face and caused the victim to fall on the ground and they were on a construction site, so the victim had collided against some wooden construction material.

2.The victim sustained tenderness on his left back, left face, left arm, right thigh and right leg; and bruising, swelling and abrasion on his leg, face and left ear, and was treated and discharged.

3.The facts which had been admitted reveal that PW1, the victim was instructed to deliver goods to a construction site and was wrongly given an address.  Upon arriving at the construction site, the victim realized he was given a wrong address.  And then he left and went to Tuen Mun.  At that time, the victim asked others for the appellant’s phone number and phoned the appellant and scolded him in foul language because he gave him the wrong address. Feeling angry, PW1 returned to the construction site and started a dispute with the appellant.  In the heat of that dispute, the appellant then punched PW1 on the face, thus resulting in the injuries I have mentioned.

4.The appellant pleaded guilty and he was represented by a duty lawyer who mitigated on his behalf.

5.The learned Magistrate, after hearing the mitigation, considered the facts of the case, and noted that the appellant is aged 39, and has two daughters, but the appellant has had 14 previous convictions.  His last offence was similar to the present offence.  The learned Magistrate considered that the appellant seemed to rely on violence whenever he encountered a problem.  Although he cannot be considered a persistent re-offender, the appellant has to learn that he cannot use violence to solve problems.

6.The learned Magistrate, after carefully considering everything, adopted a 3 months starting point and deducted 1 month because of the appellant’s plea, and sentenced the appellant to 2 months’ imprisonment.

7.The appellant now appeals against that sentence.

8.The appellant’s grounds of appeal are basically that this assault arose out of a dispute with the victim where the victim used foul language against him and scolded his parents, made it very intolerable for him and that is why he then lashed out at the victim.  And that is precisely what the appellant’s lawyer has said in mitigation.  So the learned Magistrate had taken that into account before arriving at the sentence.

9.The second ground of appeal is that he also has laceration on his hand, so he does not consider that he should go in prison whilst the victim did not.

10.And thirdly, the appellant wanted a reduced sentence in order to return to his family.

11.As far as the appellant’s laceration is concerned, this was never brought up in the Magistrate’s Court by his counsel.  Whatever the cause of his laceration, it does not minimise what he did to the victim.  He hit the victim on the face which is a very sensitive area of a person’s body, therefore it would have caused very great pain.  As far as returning to his family is concerned, as Ms Chit has pointed out, the learned Magistrate had already considered that.  As the learned Magistrate had said the appellant has a poor record and he has previously been fined for a similar offence, but yet that did not deter him from using violence again.

12.I see that the learned Magistrate had considered everything that has been raised and at the end of the day arrived at the sentence.  The sentence is not manifestly excessive, so that I have no reason to interfere with it.  So the appeal is dismissed.

Ms CHIT Noelle Aileen, Public Prosecutor of the Department of Justice, for the Respondent

The Appellant, in person