HKSAR v. YU KIN LUN AND ANOTHER

HCMA 457/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 457 OF 2004

(ON APPEAL FROM TMCC 1048/2004)

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D E C I S I O N

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1.  The two Appellants had appeared before a Magistrate on 21 April 2004 and both pleaded guilty to one joint charge of common assault, the learned Magistrate sentenced both of them to 14 days’ imprisonment and they now appeal against their sentences.

2.  I have dealt with the facts in my previous judgment when I adjourned for a probation and community service order reports from the probation service.  Both reports are now available before me.  It is clear that both men were decent and hardworking family men until they committed this present offence.  Both of them came from China and through their hard work had established a family each and both are a credit to their adopted home in Hong Kong.  They have been no burden on our social services and had all along been gainfully employed and had taken care of their family.

3.  I accept Mr Grounds’ submission that this was a one off incident and totally out of character.  I say this with confidence because the probation officer’s reports do support that view.  The probation officer was impressed with both Appellants and is also convinced that this is an isolated incident and that both had learned their lesson and are remorseful and he does not feel that probation orders are necessary in this case.  The probation officer had recommended community service for both accused in order for them to make their reparation to society and he had recommended a moderate duration of 120 hours for each Appellant.

4.  The facts of this incident do indicate it was indeed something that arose on the spur of the moment.  I accept that both Appellants had been drinking thus spurring their emotional discontent at the time.  When they got out of the taxi, they were not seeking to run away without paying the fare but both of them were highly aggravated.  It was an impulsive act and now they are remorseful.  Under these very special circumstances, I had therefore been persuaded to treat them with some mercy because it is clear that each of them are responsible for the financial support of their respective families.

5.  As I have said this type of crime can be viewed as serious because taxi drivers had to be protected.  They ply their trade in the middle of the night and the court has to look out for their interest.  Of course, each case has to be sentenced according to its own facts.

6.  I consider, therefore, that in this particular case, I can make an exception as the taxi driver’s injury was not serious.  The incident arose because of some verbal misunderstanding which led to the taxi driver fearing for his safety and therefore stopping the taxi rendering the Appellants both irritated and annoyed, so the incident then arose from there.

7.  I am obliged by law to explain to the Appellants the purpose and effect of this order.  The order is for the Appellants, each of them to serve a 120 hours of community service and the type of work will be decided by the probation officer and they are to act according to the directions of the probation officer.  If they in any way do not act according to the instructions of the probation officer, they may be brought back before this court and re-sentenced.  I understand from Mr Grounds that he had explained this to the Appellants.  If the Appellants do not understand they may seek further explanation from counsel.

8.  It is also important to explain that if, at any time, while the community service order is in force, if either of the Appellants commit another offence, then he is liable to again be brought back to court and his community service order may be revoked and another sentence may be put it in its’ place.

9.  I stress, therefore, that it is important for both Appellants to understand that the community service order may be reviewed at any time either on the application of the Appellant or the supervising probation officer.  In these circumstances, the appeal against sentence is allowed, the 14 days’ imprisonment imposed upon each of Appellants is therefore dismissed.  I sentence each Appellant to a community service order of 120 hours as recommended by the probation officer. 

10.  In my order, it will also include the name of the probation officer, Mr Chow Yuen fat whom the Appellants will have to see later, in order for him to explain and direct them where to work.

Mr Gavin Shiu, SADPP of the Department of Justice, for the Respondent

Mr Christopher Grounds, instructed by Messrs Henry Wan & Yeung, for the 1^st and 2^nd Appellants