HKSAR v. HAN SHUO HUMPHREY

HCMA 134/2020

[2020] HKCFI 3095

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 134 OF 2020

(ON APPEAL FROM WKCC 1501 OF 2020)

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REASONS FOR JUDGMENT

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1.  The appellant was charged with a charge under the Summary Offences Ordinance[1] of Possession of offensive weapon with intent to use it for unlawful purpose.  He pleaded guilty and was sentenced by the Magistrate[2] to an imprisonment term of 4 months.  He appeals against the sentence.

2.  The hearing below was conducted in Chinese.  Upon the request of the appellant, and with the consent of the respondent, this hearing was conducted in English.

3.  At the hearing, having heard the Counsel, I dismissed the appeal.  These are the reasons for my decision.

FACTS OF THE CASE

4.  In the morning of the day of offence, the appellant was walking on a street holding an axe and a can of beer.  He was seen having used the axe to knock on the street railing when he was walking along the road. Police was alerted and arrested the appellant.  At that time, he was holding a can of beer in his hand with an axe leaning on the railing beside him.

5.  Under caution, the appellant admitted that the axe belonged to him and he intended to use it for self-defence as there had been just an incident during which he was confronted by mobs when he was clearing road obstacles (the original Chinese: “我係落嚟買煙食嘅… 之前幫忙清過路障，依家因為驚畀啲暴徒打我，所以我先帶依把斧頭用嚟自衛嘅。”).  He remained silent in a subsequent interview.

BACKGROUND OF THE APPELLANT AND MITIGATION ADVANCED BEFORE THE MAGISTRATE[3]

6.  Counsel for the appellant before the Magistrate[4] informed the Magistrate of the background of the appellant, the main points were:

(1) the appellant is a Hong Kong citizen 44 years of age, he is married with three children not yet adult;

(2) he started studying in Australia at the age of 15 and returned in 1995;

(3) he is the Managing Director of:

(a) Asia Health Management Centre;

(b) Long Far International Holdings Limited; and

(c) Vetive Life;

(4) he is holding position in some organizations, such as:

(a) Honorary President of the New Territories School Heads Association;

(b) Honorary President of the Association of Founders; and

(c) Vice Chairman of the Hong Kong Chongqing Youth Exchange Promotion Association;

(5) he is a responsible husband, a caring father and caring son to his own parents; and

(6) he had a clear record[5] and did not have any history of violence.

7.  As regards the circumstances leading to the incident, the following main points were said:

(1) the appellant left home initially only with the intent of buying cigarettes, he did not have any weapon with him;

(2) when he saw bricks and other blockages on the road in his neighbourhood, he picked the bricks up and put them on the side of the pavement, so as to remove blockage of the street and inconvenience / danger to road users;

(3) he was alone doing this; and

(4) some people in black clothing wearing mask were there pointing and shouting at him for what he was doing.

8.  The followings were the main points of mitigation put forward on his behalf:

(1) the appellant pleaded guilty at the earliest opportunity;

(2) he is remorseful;

(3) the risk of re-offending is minimal;

(4) he admitted the offence on the basis that it was not a reasonable excuse to carry a weapon for use in self-defence in the circumstances where there was no imminent attack;

(5) carrying of the axe was a contingency measure;

(6) under the situation prevailing at the time of the offence when social events were going on there was a lack of certainty of safety;

(7) committing of the offence was completely out of character of the appellant;

(8) the incident had caused no injury to any person or damage to any property, there was even no threat nor any sign of hostility demonstrated by the appellant;

(9) he has been cooperative to the authority;

(10) the offence to which the appellant pleaded guilty is under the Summary Offence Ordinance;

(11) The appellant had participated in charities and made donation, organizations / persons benefitted, and activities participated include:

(a) Hong Kong Blind Sports Federation;

(b) Charitable event organized by the Lions Club;

(c) To Kwa Wan Kai Fong Welfare Association;

(d) sponsored two children through World Vision;

(e) donation to the elderly; and

(f) volunteer work such as giving out rice to the elderly;

(12) the circumstances in which he was involved in the incident were special.

9.  Mitigation letters from two Justices of Peace were submitted, both speak well of the appellant.

THE MAGISTRATE’S REASONS FOR SENTENCE

10.  The Magistrate said he had taken into account the following matters[6]:

(1) he accepted that the axe was for self defence of the appellant;

(2) there was no aggravating factor;

(3) the harm that caused by the axe could be lethal;

(4) despite the appellant did not actually use the weapon he was well aware of the intense social climate at that time; and

(5) in case the appellant was attacked or the axe was taken away, it was very likely that the axe would have been used by others (the words “by others” appear in the certified English translation but not in the original Chinese transcript, there is dispute as to whether this was what the Magistrate meant by what he had said).

11.  Having considered some authorities, the Magistrate considered that immediate imprisonment was the only appropriate sentence and that suspended sentence which was urged upon him was not appropriate.

12.  He adopted a starting point of 7 ½ months, gave the appellant a 1/3 discount for his guilty plea, and gave him a further discount of 1 month for his excellent background as the Magistrate described and his clear record.  Thus an immediate imprisonment term of 4 months was imposed.[7]

GROUNDS OF APPEAL

13.  On appeal, the appellant was represented by Mr Clive Grossman, SC and Mr Warren Louis Tang[8]. The following grounds of appeal were advanced:

(1) The Magistrate erred in principle in taking into account the high risk of the weapon being used if and when the appellant was attacked and further, if and when it might have been taken away by unknown persons;

(2) The Magistrate erred in distinguishing the case of HKSAR v Chan So Ching (陳素清)[9] and / or erred in principle when comparing the size of the 12 inch knife in that case and the axe in question in the present case;

(3) The Magistrate failed to sufficiently consider and failed to take into account the totality of the mitigation submitted and the suitability of a suspended sentence or other sentencing options;

(4) The Magistrate failed to give sufficient weight to the fact that the appellant felt threatened with assault rather than being simply shouted at by people in black clothing, when he carried the axe back to where it was found; and

(5) The starting point of 7 ½ months’ imprisonment and the ultimate sentence imposed on the appellant was wrong in principle and / or manifestly excessive.

DISCUSSION

14.  There is no tariff for this offence which is a summary only offence.  The maximum sentence is a fine of $5,000 and imprisonment for two years.[10] Not only that the maximum sentence is lower than the offence relating to offensive weapon under the Public Order Ordinance[11], the court has more flexibility in sentencing.

Ground 1

15.  The focus of this ground was the last sentence in the certified English translation of the following passage in the Magistrate’s Reasons for Sentence:

“Even it was just for self-defence and he did not actually use it, as he said in his cautioned statement, he was well aware that the social movement was at its height. By bringing a highly destructive weapon to a public place, had he been attacked by others or had the axe been taken away, it was very likely that the axe would have been used by others.”[12]

16.  Mr Grossman criticized that it was an ill‑considered finding in particular as the appellant was not threatening anyone, he was simply concerned that he might be attacked or molested and therefore was fearful given that violence had sometimes been displayed by demonstrators especially against those seen or thought to be assisting the authorities.  The axe was possessed as a threat to keep away any evil-minded person.  The suggestion that the appellant might have used the axe beyond self-defence in the circumstances or for other illegal purpose, or that it might have been seized by other people and used illegally, is far-fetched and beyond the scope of the offence charged.  Mr Grossman also pointed out that there was no evidence, nor was it the prosecution case, that there was anyone at the scene when the appellant was found in possession of the axe.  He also stressed that when found, the axe was only leaning against the railing on the pavement about one meter away from the appellant and the appellant had been penalised unjustifiably for the risk the axe would be used by others.

17.  As mentioned earlier, there was dispute as to what the Magistrate had actually said.

18.  According to the transcript of the hearing, the Magistrate said:

「而且就算被告人所說的，他只是用來自衛之用，而他沒有使用，警察到場時放在1米以外的地方。但而被告人警誡下所說，他清楚知道當其時社會運動高峰期，就算當時被告人沒有使用，但他帶該殺傷力大武器出公眾地方，若被其他人襲擊或斧頭被人取去使用的風險並會很大。」[13]

19.  In the Reasons for Sentence, what the Magistrate stated in the Chinese original is:

「…即使被告人只是用來自衛，沒有實質使用該斧頭，但根據被告人警誡下所說，他清楚知道當其時社會運動高峰期，他帶該大殺傷力武器到公眾地方，若被其他人襲擊或斧頭被人取去，使用的風險會很大。」[14]

20.  The expressions of the Magistrate on both occasions are subject to different interpretations.  Whilst the Magistrate might only have meant that there was a risk that the appellant would use the axe if he was to be attacked, the expression can lead one to think as Mr Grossman suggested.

21.  In any case, counsel for the respondent, Mr Raymond Cheng, SADPP,[15] submitted that even if what the Magistrate had in mind was as Mr Grossman suggested, that the weapon might be taken away and used by others, it was a matter which the Magistrate was entitled to take into account.

22.  Mr Cheng relied on HKSAR v Chan Yiu Shing[16] in support of this submission.  In that case I did say “… the risk that some could have fallen in the hands of other people for illegal use could not be ignored either.”[17]  However, this remark must be read in context of the case.  The offence which the appellant in the present case was charged with is possession of an offensive weapon with intent to use it for unlawful purpose.  Culpability of the appellant is to be gauged by reference to his state of mind and the other relevant circumstances pertaining to him.  In Chan Yiu Shing case, the risk I had in mind was that the chilli spray might be willingly passed to others for illegal use.  It does not in ordinary circumstances cover the situation where the weapon falls into the wrong hands against the wish of the person who is in possession of it.  In any case, whether this factor can be taken into account depends on whether the evidence supports such inference.  In Chan Yiu Shing case, the appellant wearing an armour-like black hard plastic protective gear had five bottles of chilli spray as he was proceeding to a place where he knew sensitive social event was taking place.  At the present case, the appellant was only in possession of one weapon and there was no sufficient evidence, if any at all, to support an inference that it would be passed to others for unlawful use.

23.  I have therefore considered the present case on the basis that culpability of the appellant is to be gauged by reference to his state of mind and the other relevant circumstances pertaining to him.

24.  In this regard, Mr Cheng supported the assessment of the Magistrate that the risk that the appellant would use the axe was high, despite the axe was not held in the hand of the appellant when eventually found.  He drew the attention of the court to the following matters:

(1) It was a deliberate act of the appellant to bring the axe from home to the places in question;

(2) He had carried the axe in public for a considerable distance;

(3) He publicly displayed the axe without any wrapping or cover;

(4) He could have easy access to the weapon and was ready to use it; and

(5) He had occasionally placed the axe on his shoulder and used it to knock on the railings, thus indicative of his desire to attract attention that he had an axe with him.

25.  I agreed that all these were matters which the Magistrate was entitled to take into account in sentencing.

26.  Mr Grossman argued that the assessment of risk of the Magistrate was erroneous and submitted that in the circumstances of the case the risk would have been low.  He stressed that the incident took place in the morning which was not at a time when disturbance usually happened and indeed nothing unpleasant had occurred during the time the appellant was in possession of the axe.

27.  It is true that nothing untoward had actually happened but what the Magistrate had to do was to assess the risk involved. The risk that there would have been confrontation could not be lightly discarded as it did happen just a while ago.  It was a fair finding of the Magistrate that the appellant was ready to use the axe as and when he felt necessary to do so, such situation would arise when the appellant was confronted again as before.  I did not think the assessment of the Magistrate was flawed.

28.  This ground was not decisive on the appeal as the duty of the court was to consider at the end whether the ultimate sentence imposed was proper and correct.

Ground 2

29.  Mr Grossman criticized the Magistrate for wrongly distinguished the case of Chan So Ching[18] where the appellant was sentenced to a suspended sentence for possession of a fruit knife 12 inches long.  It was his submission that many aggravating features in that case did not exist in the present.  He stressed that in the present case there was no concealment, no premeditation, no unwarranted threat and harassment, and no public officer was threatened.

30.  The appellant in Chan So Ching case was charged with the same offence.  She pointed a 12-inch fruit knife wrapped in newspaper at a staff of the Lands Department subjecting him to unwarranted threat and harassment and the court considered that such behavior should be deterred.  At the same time, the court recognized that she had been deceived and committed the offence on impulse.

31.  The reason why no tariff is set for this type of offence is that each case must be decided on its own facts and context.  There are marked difference in the facts and context between the present case and Chan So Ching case.  Despite I said in that case that “a suspended sentence is adequate”[19] the judgment must be read in full and in context.  The appellant in that case was sentenced by the magistrate to a suspended sentence plus a fine.  There was no application by the Secretary for Justice for review of sentence.  There was an appeal against sentence and one of the grounds was that it was too severe a punishment to impose a suspended sentence and it was argued that a fine would be sufficient.[20]  I held that a fine would not adequately reflect the nature and the seriousness of the case.  I further held that having imposed a suspended sentence it was not necessary to fine the appellant as well.  It was in that context that I said “a suspended sentence is adequate”, and carried on to say “it is not necessary to impose a fine in addition thereto”[21].  It was a case where I rejected the submission from the appellant that a suspended sentence was too heavy.  In my judgment, it was a lenient sentence.

32.  In the Court of Appeal decision HKSAR v Joof Saihou[22], Zervos J[23] observed:

“… the task of an appellate court in examining whether the sentence passed was proper will invariably involve a consideration of whether the sentencing court has fallen into appealable error, not whether a lesser sentence was given in another unrelated case”[24];

and as Macrae VP said, comparisons with sentences passed in other cases can sometimes be misleading[25].

33.  This ground fails.

Ground 3 and 4

34.  The essence of these two grounds was that:

(1) the severity of the present case is not that only an immediate imprisonment term is the appropriate sentence; and

(2) in the light of the mitigating features available to the appellant, the Magistrate erred in not considering other sentencing options.

35.  Mr Grossman stressed that at the material time the appellant justifiably felt threatened having been abused by people in black clothing and what he was doing was a civic duty to prevent harm to innocent people.

36.  In consideration of sentence in this nature of offence, the whole circumstances of the particular case must be taken into account.  It is quite impossible to set out an exhaustive list of matters to be considered.  Very often the following matters are relevant:

(1) the nature and size of the weapon;

(2) the potential harm it is capable to cause;

(3) the circumstances and intent of possessing the weapon;

(4) the quantity of the weapon; and

(5) how it was possessed, i.e. whether it was concealed or easy to be used.

37.  The axe is 77 cm in length and has an axe head / blade of 12 × 20 cm.  It is quite a heavy weapon.  I had examined the axe.  It has quite an artistic design but still is undoubtedly a potential lethal weapon.  The appellant did not take it into possession by chance, he took it out from his home.  He did so after having experienced hostile response by people whom he described as mob to his act of clearing the road.  It was clearly a deliberate act of the appellant with full appreciation of the circumstances he would be in.  Using of the axe as a weapon was within his contemplation, it was indeed his case that he possessed it for the purpose of self-defence.  The guilty plea was tendered as it was accepted that there was no imminent threat of safety.  As stated earlier, it was also contended that as there was no imminent threat of safety the risk involved was low.  My observation in this regard is as stated above.[26]  The appellant could have avoided the situation but he chose to do what he did, going to a place where risk of confrontation would have been obvious in the height of the social event despite it was in the morning.  The axe could have been used readily when required by situation.

38.  The offence is preventive in nature.  It reflects that the society does not condone carrying of offensive weapon in public place by members of the general public.  Its objective is to promote a relatively safe community and prevent people from taking the law into their own hands by resorting to violence to settle their own disputes.

39.  With full appreciation of the circumstances and events leading to the incident, bearing firmly in mind that the attempt of clearing the road was an unselfish act and there was no allegation that the appellant would initiate force or violence on others, taking into account all relevant matters including those as stated in paragraph 24 above, in my judgment the nature and facts of the case was serious and a custodial sentence is called for.  What the law aims at and seeks to prevent must be clearly conveyed to the members of the society.

40.  I was of the view that the starting point of 7 ½ months imprisonment is within the reasonable range of sentence to be imposed in the circumstances of the case.  There are no sufficient reasons to disturb it.

41.  The Magistrate had appropriately given the appellant a 1/3 discount for his guilty plea.  The total discount of about 40% which the Magistrate had given, in my judgment, sufficiently reflected all the mitigating factors.

42.  The question was whether in the whole circumstances including that pertaining to the appellant other sentencing options might appropriately be imposed.

43.  A submission of Mr Grossman was that a suspended sentence would have been appropriate in the present case.  He reiterated all the mitigating factors mentioned and stressed that an immediate imprisonment term would have a significant harmful impact on the family of the appellant and the risk of re-offending was almost non-existent.

44.  The offence is not an excepted offence and therefore there is no statutory prohibition in imposing a suspended sentence.

45.  In SJ v Wade[27], the Court of Appeal held that apart from certain offences specified by the court, the law does not state that suspended sentence can only be imposed when there are exceptional circumstances.  What the court should do is to have regard to all the circumstances of the commission of that offence and that of the accused in determining whether or not it is appropriate to exercise its power to suspend the operation of the sentence of imprisonment.[28]  What Mr Grossman stressed, together with the circumstances leading to the incident, are matters which the court should take into account.

46.  The Magistrate had considered whether the imprisonment term could be suspended and decided against it.  Having considered carefully the whole circumstances of the case, I considered it a proper and correct decision.

47.  The Magistrate had been asked to consider imposing a Community Service Order (“CSO”).  He did not think fit even to seek a suitability report.

48.  In any case, I had considered whether the immediate custodial term should be set aside and replaced by a CSO.

49.  The appellant meets all the personal criteria of a candidate for CSO as set out in R v Brown[29].  However, as held by the Court of Appeal in SJ v Lin Min Ying[30], a court should not conclude that the accused must be given a CSO simply because all of the factors identified in Brown are identified.  In deciding whether CSO is appropriate, the court has to consider both the circumstances pertaining to the offender and the circumstances pertaining to the offence.  If the offence is of serious nature, exceptional circumstances are required to justify CSO.[31]  In HKSAR v Chou Yau-pun[32], V Bokhary J recognized the difference between CSO and any form of custodial sentence.  She observed:

“As to community service being an alternative to a custodial sentence, there are cases where it is more appropriate than a custodial sentence. But even where the circumstances of the offender make him a viable candidate for a community service order, there must be most unusual circumstances before such an order or any other form of non-custodial sentence can be regarded as an appropriate alternative to a custodial sentence for an offence against section 161 of the Crimes Ordinance[33].”

50.  In HKSAR v Wan Ka-kit[34], Stuart-Moore VP remarked that although CSO was on occasion described as “not a soft option” to a custodial sentence, on any view it was a softer option.

51.  I would not say CSO cannot be considered for this offence, it depends on the degree of seriousness and overall circumstances in the individual case.  Having considered the whole circumstances of the present case, in my judgment this case was of such a severity that it would be unduly lenient to impose CSO.  Committing this offence by possessing a potentially lethal weapon in the overall political climate and the circumstances as in the present case calls for a sentence with deterrent effect.

52.  I had considered the medical condition of the appellant.  At the hearing, with the consent of the respondent, a recent medical report of the appellant was adduced which stated that bilateral hip osteoarthritis and early avascular necrosis (“AVN”) due to the mottled sclerosis at bilateral femoral heads were identified and if AVN is confirmed by MRI, immediate treatment such as medications or surgery would be suggested.  The condition can be well taken care of when the appellant serves the term.  I did not consider an otherwise appropriate sentence should be disturbed for this reason.

Ground 5

53.  By reason of the matters aforesaid, I did not find the sentence imposed wrong in principle or manifestly excessive.

CONCLUSION

54.  Accordingly, I dismissed the appeal against sentence.