IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NO.572 OF 2004
(ON APPEAL FROM ESCC 2137 OF 2004)
Coram: Deputy High Court Judge D. Pang in Court
Date of Hearing: 20 July 2004
Date of Judgment: 20 July 2004
J U D G M E N T
1. The applicant was convicted on his own plea of one charge of “wounding”, contrary to section 19 of the Offences Against the Person Ordinance, Cap.212. He was sentenced to six months to run consecutively to an 18-month sentence that he was serving. He now appeals againstsentence.
2. The facts were that the appellant attacked a fellow inmate in prison, causing him one puncture wound of “1 cm in diameter with abroken ball pen of about 3 cm inside” over the right forehead region, and three dotted abrasions over the left cheek and left earregion. The appellant himself suffered mainly scratches.
3. In his Reason for Sentence, the Magistrate had the following observations :
4. In my judgment, if the Magistrate erred, he erred on the side of lenience, as least insofar as it concerned the starting point.
5. Apart from the use of a weapon, the fact that it was a prison attack is in itself an aggravating factor. Its ferocity is also evidentin the victim’s head injury. I also refer to the comparable case of R. v. Cheung Wai-wah, CA 344 of 1989, cited by the respondent, in which 15 months’ imprisonment was said to be lenient.
6. As regards the appellant’s claim that the victim had threatened to beat him to death, it was something that had been drawn to theMagistrate’s attention, in a way that suggested that it was not imminent, which in turn suggests that the only reasonable recourcefor the appellant was to seek the protection of the prison authority.
7. Finally, I find nothing of substance in what he told me today. The fact that he was insulted, or that he had never had a fight inprison before, or that he was put in a single cell as a result, are not factors that could affect the result of the present appeal.
8. I see nothing wrong in the composite term of 24 months’ imprisonment. The appeal is dismissed.
Miss Mary Sin, SADPP of the Department of Justice, for the Respondent
Appellant in person