THE QUEEN v. LAM HAU HING AND OTHERS

THE QUEEN v. LAM HAU HING AND OTHERS

Conviction: DPC Leung was an innocent party present who reasonably feared injury (drew revolver) and thus the terror element of affray was proved; Sentence appeals: magistrate's chambers discussion left counsel and appellants with an impression that fines were likely for those with clear records, the magistrate failed to record the discussion, that impression influenced guilty pleas and produced a miscarriage of justice in sentencing, therefore appellate court reduced and substituted sentences to remedy the prejudice.

Citation
THE QUEEN v. LAM HAU HING AND OTHERS
Parties
Respondent: THE QUEEN; 1st Appellant: LAM HAU HING; 2nd Appellant: TAM KWOK FAI; 3rd Appellant: FU HO KIU; 4th Appellant: LI KAI SUN; 5th Appellant: WONG CHI HUNG; 6th Appellant: LAU KIN CHUNG; 7th Appellant: LOK HANG WAI
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 February 1990
Case Number
HCMA1512/1989
Procedural Posture
Criminal Appeal (magistracy Appeal) / Appellate Judgment on Conviction and Sentence
Outcome
Appeal against conviction (3rd appellant) dismissed; appeals against sentence (1st,2nd,4th,5th,6th,7th, and 3rd as to sentence) allowed in part.
Legal Topics
Affray, Elements of Offence (terror to Bystander), Sentencing Indications in Chambers, Plea Induced by Judicial Indication, Record‑keeping of Pre‑trial Discussions
Source Language
EN
Criminal Law Sentencing Procedure Affray Elements of Offence (terror to Bystander) Sentencing Indications in Chambers Plea Induced by Judicial Indication Record‑keeping of Pre‑trial Discussions

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Parties

THE QUEEN

Respondent

LAM HAU HING

1st Appellant

TAM KWOK FAI

2nd Appellant

FU HO KIU

3rd Appellant

LI KAI SUN

4th Appellant

WONG CHI HUNG

5th Appellant

LAU KIN CHUNG

6th Appellant

LOK HANG WAI

7th Appellant

Procedural Posture

Criminal Appeal (magistracy Appeal) / Appellate Judgment on Conviction and Sentence

Legal Issues

  1. 1 Whether the elements of affray were proved including the terror to a by‑stander
  2. 2 Whether a person actually involved can be a by‑stander for affray
  3. 3 Whether magistrate's remarks in chambers created an expectation that induced guilty pleas and thus vitiated sentences

Ratio Decidendi

Conviction: DPC Leung was an innocent party present who reasonably feared injury (drew revolver) and thus the terror element of affray was proved; Sentence appeals: magistrate's chambers discussion left counsel and appellants with an impression that fines were likely for those with clear records, the magistrate failed to record the discussion, that impression influenced guilty pleas and produced a miscarriage of justice in sentencing, therefore appellate court reduced and substituted sentences to remedy the prejudice.

Court Disposition

Appeal against conviction (3rd appellant) dismissed; appeals against sentence (1st,2nd,4th,5th,6th,7th, and 3rd as to sentence) allowed in part.

Orders

  • Appeals against sentence of 1st,2nd,4th,5th,6th and 7th appellants allowed; two months imprisonment in respect of affray substituted by five days imprisonment (time served credited).
  • Appeal against sentence on wounding charge (6th appellant) allowed; six months imprisonment substituted by a fine of $5,000 HKD.