HKSAR v. Thapa Kishan

HCMA 692/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 692 OF 2012

(ON APPEAL FROM ESCC NO 2480 OF 2012)

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Before: Deputy High Court Judge Yau in Court

Date of Hearing: 27 November 2012

Date of Judgment: 4 January 2013

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JUDGMENT

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1.The appellant pleaded guilty to one count of possession of an offensive weapon, contrary to section 33(1) of the Public Order Ordinance, Cap 245. The particulars of offence are that the appellant on 6 July 2012 outside Likuid Bar, 58-62 D’Aguilar Street, Central, without lawful authority or reasonable excuse, had with him in the said public place an offensive weapon, namely a chopper.

2.He was sentenced to 8 months’ imprisonment for the offence.  He had a concurrent sentence of 1 month imprisonment suspended for 12 months for each of the offences of criminal damage and assault occasioning actual bodily harm imposed on him on 23 February 2012 which was about 3½ months before the present offence.  The magistrate activated the suspended sentence and ordered it to run consecutively to the term of imprisonment imposed, making a total of 9 months’ imprisonment.  The appellant appeals against the sentence of 8 months’ imprisonment.

Facts admitted

3.At about 0345 hours on 6 July 2012 the appellant who appeared to be drunk tried to enter Likuid Bar at G/F., 58-62 D’Aguilar Street, Central, but was rejected by the two security guards of the bar as he refused to allow his rucksack to be checked.

4.The appellant suddenly took out a chopper of around 30 cm in length from the rucksack.  The two security guards at once grabbed the appellant’s hand and subdued him and got hold of the chopper.  One of them recalled that the appellant had entered the bar earlier on the same night and he had checked his rucksack with no chopper inside.

Grounds of Appeal

5.The appellant makes clear that he is only appealing against the sentence of 8 months’ imprisonment which he considers to be manifestly excessive.  He submits that his family is in financial troubles after his incarceration.  He is remorseful and will not do it again.

Discussion

6.The appellant is aged 23 and was of the same age when he was sentenced.  As he was not yet 24 years of age, according to section 33(2)(c) of the Public Order Ordinance, he is to be sentenced to imprisonment for not more than 3 years or detention in a Detention Centre or Rehabilitation Centre.  The appellant has four previous convictions three of which were of violence.  He committed the present offence only about 3½ months after his last conviction.  Detention in a Detention Centre or Rehabilitation Centre is obviously not an appropriate sentence.  The magistrate was correct in sentencing the appellant to imprisonment.

7.The magistrate was shown the chopper in court and he described it as “a good quality implement of medium size for a chopper and was of solid construction”.  The magistrate also said that it was chilling to contemplate the injury such a weapon could have caused.

8.The appellant said in mitigation that he had committed the present crime out of momentary foolishness and had only taken the chopper out of the rucksack due the anger of being rejected from the bar.  The appellant obviously deliberately took along the chopper on his second visit to the bar.  When he failed to enter the bar he produced the chopper.  The magistrate rightly pointed out that there was nothing spontaneous or opportunistic about the appellant’s possession of the chopper.  It is the view of the court that it was fortunate that he was subdued and disarmed promptly otherwise the consequences could be disastrous.

9.Taking into consideration the circumstances of the case and the violent nature of the appellant as reflected in his criminal record, the magistrate was correct in taking 12 months’ imprisonment as starting point and sentencing him to 8 months’ imprisonment after giving him credit for his plea of guilty.

10.The financial difficulties of the family of the appellant caused by his imprisonment obviously cannot constitute a valid ground to reduce the sentence.  The appellant being an adult should have known very well before he embarked to offend the law that there would be such consequences.  Moreover, his family can always ask for the help of the Social Welfare Department should a need arises.

Conclusion

11.The sentence of 8 months’ imprisonment although heavy is neither excessive nor wrong in principle.  Appeal against sentence is dismissed.

Mr Frederick Chung SPP of Department of Justice, for the respondent

The appellant in person, present