Hong Kong's magistrates need a sense of proportion

September 25, 2015 08:58
Questions have been raised about the sentencing decisions in some cases at Hong Kong courts recently. Photo: HKEJ

Four mainland Chinese tourists—exasperated by an eight-hour delay of their flight—scuffle with seven Hong Kong Airlines ground staff, punching and shoving them. Arrested, they plead guilty to assault and are sentenced to between nine and 11 days’ imprisonment, which they serve.

An Australian tourist gets drunk, drags a minibus driver out of his vehicle and speeds off. Police arrest him in the minibus on Stubbs Road. He pleads guilty to numerous charges, including common assault. He is not jailed: although he is sentenced to two months' imprisonment, it is suspended for 12 months and he is free to leave Hong Kong.

In the case of the unruly tourists, Acting Principal Magistrate Cheang Kei-hong said it was the ground crew's duty to protect the airport’s restricted zones from unauthorized entry, and thus the court had to defend them.

Why is there no such duty to protect minibus drivers from the assaults of visiting tourists, or road users and pedestrians from drunken bus thieves?

Instead, Eastern Court Magistrate Winston Leung lauded Patrick Cunningham’s rise "against all odds" to become a hospital nursing assistant in his home country.

The use of violence or weapons – in this case an out-of-control minibus—surely must mandate a custodial sentence.

In August, Magistrate Rita So jailed Peter Amstutz, a retired Australian woodworker, for one week after he was convicted of indecently touching the buttocks of a Cathay Pacific flight attendant. So rejected his defense lawyer’s request to impose only a fine, saying a short period of imprisonment was appropriate.

Surely the defense of "I was drunk. I didn’t know what I was doing" can be consigned to history. It didn't work for Kelsey Mudd in 2010. The American, on holiday in Hong Kong, tried to seize control of a taxi. When driver Wong Chi-ming got out in an attempt to remove the drunken passenger, Mudd grabbed the wheel, driving off and striking Wong fatally.

Mudd's counsel, Christopher Young, claimed his defendant was only partly responsible, arguing that if Wong had not left Mudd alone in the taxi, the incident would not have happened. The jury disagreed (though only on a majority 5-2 vote).

Mudd was convicted but, much to the disgust of Wong’s family, was given a sentence of just four years and three months.

Fortunately, Cunningham didn't kill anyone but given that he was also charged with taking a conveyance without authority, using a vehicle without third party insurance and failing to provide a specimen for a blood alcohol test, was surely even more worthy of a jail term.

Tourists don’t deserve any special consideration if they behave badly. Jailing someone for a violent attack isn’t going to turn people off coming to Hong Kong. Quite the opposite – it instils confidence that unprovoked attacks have no place in society.

There is something seriously wrong with Hong Kong's sentencing guidelines when a resident can be given three-and-a-half months’ jail for assaulting a police officer with her breast, but a visitor who admits to assaulting someone and taking a minibus on a drunken joyride can go home unpunished.

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A Hong Kong-based writer and editor and former regional editor of the Far Eastern Economic Review. He has also been published in The Wall Street Journal, Variety and the SCMP. He is currently pursuing a master’s degree in journalism at HKU.