HKSAR v. HUNG MEI KWAN

HCMA 1257/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1257 OF 2002

(ON APPEAL FROM KCCC 18415/2002)

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J U D G M E N T

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1. This Appellant was convicted after trial of one count of Obstructing a Police Officer and one count of Assaulting a Police Officer in the Due Execution of his Duty; both offences are contrary to s. 36(b) of the Offences Against the Person Ordinance, Cap. 212 with a maximum sentence of 2 years' imprisonment for each offence. On Charge 1 he was sentenced to 3 months' imprisonment and on Charge 2 to 9 months imprisonment which was ordered to run consecutively to the first sentence, making a total of 12 months.

2. The Appellant appeals today against both conviction and sentence and represents himself on the appeal against conviction. He is represented by counsel for the appeal against sentence, which relates to the 2nd charge only.

3. The Magistrate examined the evidence and assessed the witnesses and the facts which emerged at trial were, in brief, as follows.

4. A group of police officers wanted to conduct an ID check on some men in a car-park area in a San Po Kong Street, as they suspected the men might have possessed dangerous drugs. The first witness, a Sergeant, who was the victim of the charges, approached the Appellant, identified himself, produced his warrant card and said he wanted to check Appellant's identity card and search him.

5. The Appellant turned his head away ignoring the request which was repeated, and said: "Go away, I won't let you search me". A further warning was given but the Appellant ignored it. The Sergeant took the Appellant's hand to bring him to his feet at which point the Appellant flung his arm away saying: "I have nothing. I will not let you search me". The Sergeant instructed another officer to arrest the Appellant.

6. At this point, the Appellant became agitated, claiming he did not know the Sergeant was a police officer. He was handcuffed and taken to the police van. He shouted: "Damn you, officer. Go to hell," and using his left leg kicked upwards and sideways hitting the Sergeant on his right thigh. This kick caused the Sergeant to fall and in consequence he sustained a minor cut and abrasion to his elbow, redness to his arm, a minor cut to his finger and some damage, again minor, to his windbreaker and his beat radio.

7. The Magistrate sentenced on the basis that the Appellant knew the police were carrying out their duty and was being deliberately obstructive; he also noted the Appellant's very poor and lengthy record which revealed similar offences. He was aware and stated so, that the Appellant could not be punished again for those offences, but that the nature of the record aggravated the current offences and he was entitled and duty-bound to take them into account.

8. The Appellant's record starts in 1972 and lists 35 separate conviction dates - many relating to multiple offences. He was convicted of a number of related, or similar, offences. One was Assaulting a Police Officer in 1978 when he was sentenced to 6 months' imprisonment; three offences were Resisting Arrest in 1982, 1986 and 1989; one offence was Obstructing a Police Officer, in 1999, and four offences involved wounding, fighting or assault. The last recorded offence was Common Assault for which he was sentenced to two months' imprisonment in April 2002. Other offences indicated the Appellant was a drug addict of some years standing.

9. The Magistrate considered the length of sentence and concluded that such sentences should be deterrent in nature for persistent offenders. He considered also that the sentences should be consecutive and looked at the overall totality in fixing the term.

10. The ground of appeal against conviction was the pro forma ground that the conviction was against the weight of evidence but it was not expanded upon prior to this hearing. Today the Appellant told the court he had nothing further to say in respect of his appeal against conviction. I have considered the facts of the case and the Magistrate's examination of the evidence. I am satisfied that there was ample evidence on which the Magistrate could have, and should have, convicted, and the appeal against conviction is dismissed.

11. The submission on the appeal against sentence for Charge 2, was that a sentence of 9 months for assaulting a police officer in the due execution of his duty was manifestly excessive and the overall term for consecutive sentences on Charges 1 and 2 was too severe.

12. The Appellant's counsel relied on a number of cases, not as guidelines but to illustrate that the sentence in this case was too heavy. Those cases related to convictions imposed after trial, four of the five involved minor injuries to the victim; sentences ranged from 28 days to 4 months' imprisonment.

13. Counsel pointed out that in four of the five cases the appellate court upheld the original sentences, without seeing fit to increase them because they were considered inadequate. Four of the five defendants in those cases had previous convictions - one had 58 previous convictions. Of the five cases referred to, three had one, or more, similar convictions.

14. The Respondent does not take issue with those cases, but referred the court to a number of cases which show that where someone is a persistent offender, the court can take that into account when sentencing. In HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 in the context of a dangerous drug case, the court pointed out that where an offence is repeated a heavier sentence is likely to be imposed for its repetition. At page 837, Stuart-Moore, V-P stated:

"Trafficking in dangerous drugs, is certainly no exception, if indeed there are any exceptions, to the general rule that re-offending in the same or similar way may aggravate the offence at least so far as sentence is concerned. This will have the result that the starting point which would have been adopted for a man of good character will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court's duty to protect the public on the other."

15. Similarly in R v Simon Tam, MA 489-490 of 1996, Hon Patrick Chan J (as he then was) stated:

"There are clear authorities to the effect that in a case where a person had a history of multiple offences of a similar nature in the past, the court is entitled to take a higher starting point. This is not to say that a defendant is to be punished twice. It is simply that while the defendant had been punished for the past offences, he clearly has not learned any lesson and a greater deterrent sentence may be necessary to be effective."

16. I have taken careful note of what Mr Wong, for the Appellant, has advanced on behalf of the Appellant, recognizing that this is a comparatively high sentence. However, it is clear that this Appellant has not seen fit to alter his behaviour over many years, despite repeated attempts by the sentencing courts to achieve such alteration. He has a history of similar offences; the Magistrate was justified in imposing a deterrent sentence and adopting a higher starting point.

17. I note that the sentence is higher than those imposed in the cases referred to by the Appellant's counsel, but although consistency is desirable and an important aspect of sentencing, it is the facts of an individual case which fall to be assessed by the court. I can only interfere with this sentence if it is manifestly excessive or wrong in principle and having considered the Magistrate's Reasons for Sentence, I cannot find that either element has been established. This was a serious offence. The Appellant, having been arrested for obstruction, chose to assault the Sergeant. I note they were minor injuries, but nevertheless public officers acting in the course of their duty are entitled to be protected.

18. There was no plea of guilty which the Magistrate could have taken as mitigation, nor any sign of remorse and I am satisfied although this sentence is on the high side, in this particular case it was justified.

19. The appeal against sentence is dismissed.