HKSAR v. WAN KIN MAN AND ANOTHER

HCMA920/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 920 OF 2003

(ON APPEAL FROM KCS 219 OF 2003)

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JUDGMENT

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1. On 8 September 2003 the appellants each pleaded guilty to an offence of assault occasioning actual bodily harm contrary to the Common Law and punishable under section 39 of the Offences Against the Person Ordinance (Chapter 212).

2. The summary of facts admitted by both appellants was as follows :

" PW1 is a Hawker Control Officer and PWs 2-4are Assistant Hawker Control Officers of Food and Environmental Hygiene Department. At 0500 hours on 2003-07-11 they were on plainclothes anti-littering duty. At 0605 hours that morning PWs 2&3 patrolled to the car park exit of Mirador Mansion at Bristol Avenue. PW2 noticed D1 discard a cigarette end onto the street. He then revealed his identity and requested for D1's particulars to issue a fixed penalty ticket. At that juncture D2 came to scene and joined with D1 to scold PWs 2&3. Afterwards, they boarded a taxi at Bristol Avenue junction with Carnarvon Road. PWs 1&4 came to the aid of their colleagues. PW1 stopped the taxi from leaving the scene, who was then kicked by D1 and punched by D2. A report was made. PWs 5-6 attended scene to arrest D1&D2. Under caution, D1 claimed that he had just pushed away PW1, while D2 denied his guilt. PW1 sustained tenderness over the back of his right lower chest wall and abrasion below right eye (E1). He was sent to QEH and discharged after treatment."

3. Both appellants were sentenced to a term of 14 days' imprisonment and were granted bail pending appeal. The appellants appeared before me on 30 January (some five months later) to appeal against their sentences.

4. In his 'Reasons for Sentence' the magistrate said (inter alia) this :

" In determining sentence I bore in mind all the options open to the court and everything submitted in mitigation, all of which is in the transcript of proceedings. I bore in mind the relatively slight injuries suffered. Both defendants had clear records. D1 is a 28 year-old disc-jockey earning $8000 a month. He was remorseful and apologized to the victim before court. D2 had been having a few drinks with D1. D1 had left the drinking establishment before D2. D2 found D1 having an 'argument' with two men in plainclothes. D2 approached and urged D1 to leave. D1 and D2 boarded a taxi. PW1 intercepted their taxi and clearly wanted them to exit therefrom. D2 was under the influence of alcohol and, stupidly, he punched PW1. He is 29 years old and is training to manage a restaurant.

The enforcement of anti-littering laws is an important but difficult and thankless task. The officers clearly identified themselves as such. The response of these defendants was unacceptable and must be dealt with firmly. To do so otherwise would send the wrong signals both to those who would challenge the enforcement of these laws and to those officers who have the unenviable duty of pursuing litterers. I found that a short sharp deterrent sentence was appropriate in the circumstances. I found that 21 days in prison after trial was right, if possibly too lenient. On their early pleas of guilty, I gave them the full 1/3 discount and sentenced them to 14 days in prison. There were no grounds whatsoever to justify suspending the sentences."

5. At least on the face of it no right-minded person could disagree with any of that and, perhaps in particular, that the sentence was possibly too lenient when imposed on 8 September albeit that whilst the 1st appellant was undoubtedly aware of the identity of the officers concerned, there was no evidence that the 2nd appellant was similarly aware and that was a matter very much in dispute.

6. The grounds of appeal settled by Mr Boyton and advanced on behalf of the 1st appellant were these :

"	1.	[Withdrawn]
	2.	The learned Magistrate's finding was disadvantageous to the first Appellant or alternatively the first Appellant's Counsel had failed to elaborate upon the brief facts as reflected in the witness statements, which showed, inter alia, the second Appellant punched PW1, before the First Appellant kicked PW1.
	3.	Further to Ground 1 and 2, the learned Magistrate appears to have assumed that PW1 was assaulted directly in relation to 'his work' and may have decided a wrong sentence in principle.
	4.	Further to Ground 3, the learned Magistrate did not identify the fact that the First Appellant actually co-operated with the officers and furthermore failed to give due weight to the First Appellant's immediate co-operation, or alternatively the First Appellant's Counsel had failed to elaborate upon the brief facts as reflected in the witness statements, in the First Appellant's favour.
	5.	In all the circumstances the learned Magistrate failed to consider the sentencing options which were available."

7. The grounds of appeal settled by Mr Ng and advanced on behalf of the 2nd defendant were these :

"	1.	The learned magistrate erred in fact in sentencing the Appellant on the basis that he assaulted the victim with the knowledge that the victim was a hawker control officer enforcing anti-littering laws when at the time of passing the sentence, [albeit that he] appeared to have accepted what was put in mitigation that the Appellant (D2) was not aware of the victim's official capacity.
	2.	Alternatively, the learned magistrate erred in law in failing to resolve the vital issue of whether the Appellant knew the victim was a hawker control officer enforcing anti-littering laws at the time of the offence by hearing evidence in a Newton hearing, and proceeding to resolve the issue adversely to the Appellant: if the learned magistrate regarded it as a material issue, he should either have heard evidence or, if he was not prepared to do that, he should have made assumptions favourable to the Appellant when sentencing.
	3.	In the premises, the sentence of 14 days' imprisonment is manifestly excessive."

8. I say straightaway that the first three pursued grounds of appeal advanced on behalf of the 1st appellant have about them an air of unreality. There is no substance in them whatsoever. There is, however, substance in the first and second grounds of appeal advanced on behalf of the 2nd appellant and given the fact that both appellants have been on bail since September 2003 there is now perhaps some underlying substance in the fifth ground of appeal advanced on behalf of the 1st appellant which inevitably must (or so it seems to me) apply to both appellants. I do not mean by that that the magistrate failed to consider other sentencing options. Plainly he did consider them and he says as much. What I mean is that by reason of the delay between sentence and appeal the available options needs must be reconsidered.

9. The position, put shortly, is this. Both appellants, of prior good character, pleaded guilty to the offence on 8 September last year. The magistrate (as I have already indicated) quite rightly, in my view, imposed upon each of them what he describes as a 'short sharp deterrent sentence' of 14 days' imprisonment and so it would have been had the appellants not chosen to appeal and by so doing effectively impose upon themselves a sentence suspended pending the outcome of the appeal.

10. I am told and I accept that the 1st appellant has, through his solicitors, anxiously pursued his appeal in an attempt to get an early hearing date. The 2nd appellant, for reasons which are not apparent (but which may nonetheless be compelling) has demonstrated less anxiety, and thus the appeal was not set down for hearing until January 2004.

11. As I have said already the magistrate decided to impose what is sometimes referred to as a 'short, sharp shock' by sentencing the appellants as he did. Of course one important element of such a disposal is that it be immediate or at least relatively so. If it is not and, as I have said, it was not in this case, that short immediate sentence of imprisonment becomes, in effect, a short sentence suspended. That, of course, is nobody's fault. But the fact of the matter is that the effect of such a 'suspended sentence' upon the appellants is not something which in my judgment an appellate court can just ignore. I accept that they have been affected by it - and positively so. Albeit that in this case the appellants have put themselves and/or their families to (no doubt) considerable expense in their legal representation both in the magistrates' court and on appeal that is not a matter which I take into account.

12. Having considered all other matters before me it seemed to me that I was (in January 2004) in a very different position to that of the magistrate (in September 2003) in seeking to determine now what the appropriate sentence is for the offences committed by the appellants in July of last year. It was for that reason that, on 30 January, I adjourned the hearing of this appeal until today and I called for a community service suitability report in relation to both appellants making it abundantly plain both to them and their counsel that, irrespective of what those reports might tell me, they should not expect other than to serve their sentences of imprisonment.

13. I have now received the Community Service suitability reports and I am told that both appellants are suitable for such service. That being so, and given everything that I have said, I will allow these appeals to the extent that I set aside the terms of imprisonment and I impose upon each appellant instead a community service order of 200 hours which service it is anticipated will take at leave six months to complete.