SECRETARY FOR JUSTICE v. AU NOK HIN

[English Translation - 英譯本]

CAAR 2/2020

[2021] HKCA 554

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 2 OF 2020

(ON APPEAL FROM KCCC NO 2558 OF 2019)

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REASONS FOR JUDGMENT

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Hon Poon CJHC (giving the Reasons for Judgment of the Court):

A.  Introduction

1.  The respondent was charged with two counts of “assaulting a police officer acting in the execution of his duty”, contrary to section 63 of the Police Force Ordinance[1], to which he pleaded not guilty. On 6^th April 2020, he was convicted of both counts after trial by Ms Leung Ka-kie, the trial magistrate, who on the same day called for a community service order report and adjourned the sentence. Meanwhile, the respondent was granted bail pending sentence. On 24^th April, 2020, the trial magistrate adopted the recommendation of the community service order report and sentenced the respondent to 140 hours of community service on the two counts.

2.  Under section 104 of the Magistrates Ordinance[2], the applicant applied to the trial magistrate for a review of the sentence on the grounds that it was wrong in principle and manifestly inadequate. On 12th June 2020, after hearing the parties, the trial magistrate rejected the applicant’s application for a review and upheld her original decision.

3.  On 6th July 2020, pursuant to section 81A of the Criminal Procedure Ordinance[3], the applicant was granted leave to apply to the Court of Appeal for a review of the trial magistrate’s sentence. Since the respondent had by then lodged an appeal against his conviction, according to section 81C of the Criminal Procedure Ordinance, no hearing date could then be fixed for the present review. On 20th January 2021, Poon J of the Court of First Instance dismissed the respondent’s appeal against conviction[4]. After that, on 27th January 2021, the present application for review was set down for a hearing.

4.  Having heard the parties on 23rd March 2021, we allowed the application for a review of sentence, set aside the community service order and sentenced the respondent on the two charges to 9 weeks’ imprisonment in total. We now hand down the reasons for our judgment.

B.  The Trial

B1.  The prosecution case

5.  According to Charge 1, at 0025 on 8th July 2019, at Nathan Road, junction with Dundas Street and Hamilton Street, Yau Ma Tei, Kowloon, the respondent assaulted PC 23663 of the Police Tactical Unit - a police officer acting in the execution of his duty. Charge 2 says that from 0027 to 0031 on 8th July 2019, at the junction of Nathan Road and Hamilton Street, Yau Ma Tei, Kowloon, the respondent assaulted Superintendent of Police KO Chun-pong - a police officer acting in the execution of his duty (hereinafter referred to as “Superintendent Ko”).

6.  It was the prosecution case that, in the evening of 7th July 2019, a large crowd of people were obstructing the traffic in the vicinity of Nathan Road and Mong Kok Road. At around 10:05 p.m., acting on instructions, Senior Police Constable 18506 (PW1) arrived at the scene and formed a police cordon on the carriageway together with about 150 to 200 police officers in total. According to the video clips produced in court[5], at the material time, a throng of people (including journalists) were in front of the police cordon. The one standing in the centre of the front row among the crowd was the then incumbent legislative councillor Mr. Jeremy Tam Man Ho. Tam was asking for a dialogue with the commander, while the police were demanding Tam to lead the people behind him to return to the pavement[6]. As the people standing on the carriageway (including the journalists) had not left, the police decided to charge forward to disperse the crowd.

7.  At this juncture, the respondent, who had all along been in the crowd, moved to the front row and stood next to Tam Man Ho[7]. The respondent was holding a microphone which was connected to a large loudspeaker commonly referred to as a loudhailer, yelling into the microphone, demanding that “the commander come forward at once”[8]. Immediately following that, the police proceeded to charge forward[9] while the respondent shouted out utterances like “bloody black cops”, “black cops” and “Please stop executing your duty”[10]. From the video clips produced, one can see that while the police were advancing, PC23663 (PW2) who was standing right in front of the respondent pushed a few times forward with a transparent long shield in his hand[11]. The respondent was getting more and more agitated and he kept shouting abuse “Yi Jin grad, Yi Jin grad, Yi Jin grad”[12] at PC23663. After that, using the bottom of his microphone, he knocked forcefully (described as “striking downward” in evidence) at the transparent long shield of PC 23663 three times in a row[13], for which PC 23663 was alarmed. The aforementioned are the facts in support of Charge 1.

8.  Subsequently, Superintendent Ko (PW 3) of the Police Public Relations Branch arrived at the scene to deal with the media. While Mr Ko was having his back towards the police cordon, the respondent was, to his right-hand side, speaking loudly with the loudhailer. Superintendent Ko asked the respondent to keep quiet, but the respondent answered him with foul language[14]. Superintendent Ko then questioned the respondent by saying “You’re a councillor. Why are you using foul language?” Yet, the respondent kept shouting next to his ear with the loudhailer at close range, as a result of which Superintendent Ko did not feel well and swept off the loudhailer with his hand. Nevertheless, the respondent continued to speak loudly with the loudhailer next to the Superintendent Ko’s ear at close quarters. Superintendent Ko had repeatedly warned the respondent not to do so, but in vain. After executing his duty, Superintendent Ko sought medical consultation on his own initiative, and he was referred to an otorhinolaryngologist for treatment. According to the medical report, the audiogram performed on 17^th July 2019 showed that he had mild loss of hearing in his right ear. The preliminary diagnosis was acute hearing loss with history of noise exposure[15]. When attending both follow-up consultations on 31^st July 2019 and 13^th September 2019, he indicated that there had been improvements in terms of hearing and that his ear pain had already subsided[16]. The aforesaid are the facts in support of Charge 2.

B2.  The Position of the Defence

9.  The respondent elected not to give evidence at trial, nor did he call any defence witnesses. However, he challenged the credibility and reliability of the evidence of PC 23663 and that of Superintendent Ko[17]. He also argued that the prosecution failed to prove all the elements of the two charges. He mainly relied on the following grounds:

(1)  The transparent long shield held in PC 23663’s hand was taller than the head level, and the respondent had been keeping a certain distance between himself and the long shield. Therefore, the respondent’s conduct in relation to Charge 1 definitely did not amount to violence[18], nor would it have caused “apprehension” in PC 23663 and alarmed him[19].

(2)  The respondent was only trying to draw the attention of the officer(s) when his requests had been ignored. The conduct for which he was charged is not serious enough to constitute an assault[20]. The conduct in relation to Charge 1 is equivalent to giving a tap on another person’s body, which falls within an acceptable range that should be permitted[21].

(3)  What the respondent did could not be described as shouting at close range of Superintendent Ko[22], and the prosecution failed to adduce sufficient evidence to prove that the condition of the Superintendent’s ear was caused by the sound waves produced by the respondent’s loudspeaker[23].

B3.  Reasons for Verdict

10.  With respect to the various elements of Charge 1, the trial judge’s findings of fact can be summarized as follows:

(1)  In the circumstances when the incident took place, the respondent gave the transparent long shield of PC 23663 three forceful downward strikes right in front of his line of sight, which was a malicious act[24] that caused PC 23663 to apprehend the infliction of immediate unlawful force on his person[25]. Even assuming the mens rea of the respondent was not intentional, judging from the degree of force and number of times the respondent had struck, his facial expression, content of his utterances, his tone, his voice and his capacity as a councillor, the respondent was obviously reckless as to whether his behaviour was going to cause apprehension in PC 23663 of the infliction of immediate unlawful force on his person[26].

(2)  Regarding the issue of “apprehension”, although PC23663 did not describe his feeling at the time with the clearest and totally consistent wording, the trial judge accepted that PC 23663 did find the respondent’s conduct unexpected, that he was afraid of falling down and that it came as a reflex response for him to grab his shield tight. The trial judge was of the view that those were signs showing that PC23663 was alarmed[27].

(3)  The respondent was supposed to know that PC 23663 was advancing on the instruction of his superior (including the commander) to execute his duty, and that he simply did not have the right to stop executing his duty without authorization. It was unreasonable for the respondent to draw attention by attacking PC 23663. What is more, the respondent’s conduct (including striking PC 23663’s transparent long shield continuously and forcefully) did involve violence, and his conduct and utterances were antagonistic in nature, which were totally inconsistent with the explanation that he was trying to draw attention[28].

(4)  PC 23663 was unwilling to be assaulted by the respondent with force. It was impossible that the respondent did not know (he would be reckless otherwise) that PC 23663 was unwilling to be assaulted with force.

11.  In respect of Charge 2, the trial judge pointed out that there was merely a distance of an arm’s length (or 27 inches) between the respondent’s loudspeaker and Superintendent Ko[29], that Superintendent Ko had tried to brush the respondent’s loudspeaker aside, indicating that he could not stand the very loud sound blasting from such a short distance[30], and that Superintendent Ko had repeatedly asked the respondent not to put the loudspeaker near his ear[31]. Given the superintendent’s reactions, it was impossible for the respondent to genuinely believe that his behavior was considered acceptable[32]. From the content of the utterances shouted out by the respondent, one can see that it was not his purpose to draw attention. Rather, his conduct was malicious or carried out in a reckless manner[33]. Besides, the trial judge reckoned that Superintendent Ko’s testimony and medical report were sufficient to show that his ear problem was caused by the sound waves emitting from the respondent’s loudspeaker[34].

B4.  Mitigation

12.  When the respondent was sentenced, he was aged 32, married but did not have children. He had no previous conviction record. He was a university lecturer and at the time a legislative councillor[35].

13.  Mr. Robert Y.H. Pang, S.C. and Mr. Michael C. Chai for the respondent[36]submitted that “the instant case actually belongs to the most trivial type”. On Charge 1, Mr. Pang did not dispute that the respondent was emotionally very agitated at the time, but argued that by striking at the transparent long shield of PC 23663, he was only seeking attention, and that there was no bodily contact between the respondent and the police constable. In relation to Charge 2, Mr. Pang submitted that there was no evidence to show that Superintendent Ko sustained any permanent injuries to his ear. He also said that the respondent simply wanted to get a chance to communicate with the police, without any intention to hurt the superintendent. Mr. Pang submitted to court a number of mitigation letters and a statement written by the respondent before he was found guilty[37]. The respondent mentioned in the statement that he did not bear the police constable any malice and on the day after committing the offences, he had already made an open response to the public and apologized for what he had said[38]. In terms of sentence, Mr. Pang suggested before the trial magistrate that the respondent be fined or placed under a community service order.

14.  The trial magistrate accepted Mr. Pang’s submission and called for a community service suitability report before passing sentence.

15.  In the community service suitability report, the probation officer mentioned five factors which had been taken into account. They are the respondent’s clear record, his remorse, his effort in leading a productive and self-reliant life, his willingness to shoulder his legal responsibility and the support he obtained from his family. For the above reasons, it was recommended that the respondent be placed on a community service order of a medium range (i.e. 81-160 hours).

16.  On 24^th April, 2020, Mr. Pang made further submissions in mitigation that the likelihood of the respondent reoffending was close to zero. He also stressed that the respondent was no longer a legislative councillor and he intended to leave Hong Kong for Japan to take up a doctoral degree course there.

17.  In the end, having taken into account the content of the community service order report, the fact that the respondent was a first-offender, that he was convicted after trial and all the relevant authorities, the trial magistrate accepted the probation officer’s recommendation and sentenced the respondent to 140 hours of community service on the two charges.

B5.  The Review Hearing

18.  At the review hearing conducted on 12^th June 2020, the principal arguments put forward by Ms Yu Kwok Wai Margaret, Senior Assistant Director of Public Prosecutions, were that the usual sentence for assaulting a police officer is one of immediate imprisonment and that there were no exceptional circumstances in the case to justify an option of non-custodial sentence.

19.  The trial magistrate rejected the applicant’s application for a review and stressed that she had not neglected any important facts of the case including the obstruction caused to the traffic, the respondent’s commission of the offences in front of the police cordon, the actual situation under which he assaulted the two officers, and his original intention to seek communication with the police. The trial magistrate also pointed out that during the trial, what the respondent had raised were mainly issues on points of law, and that earlier on, he had expressed his regrets and reflected on the matter.

C.  Grounds of Review Against Sentence

20.  Mr. LUI Tsz Ming, Ira, Assistant Director of Public Prosecution, and Miss Ng Cheuk Hwa, Claudia, Senior Public Prosecutor, for the applicant put forward two grounds in support of this application for a review:

(1)  The trial magistrate failed to give full consideration to the usual sentence for the offence and erroneously underestimated the gravity of the case;

(2)  The community service order, which failed to serve as an appropriate sentence in the case, was wrong in principle and manifestly inadequate.

C1.  Ground 1

21.  Mr. Lui contended that assaulting a police officer as an offence generally warrants an immediate custodial sentence in order to reflect the gravity of the offence and the need for deterrence. To support his argument, he cited a series of authorities including Court of Appeal cases Secretary for Justice v Kung Yat-kan, Clifford [2020] HKCA 907, Secretary for Justice v LHY [2021] HKCA 155 and R v Hui Man-lee, CACC 399/1993, 4 November 1993, unreported and Court of First Instance cases R v So Kan Ming, HCMA201/1996, 3 May 1996, unreported and HKSAR v Chan Pak-yeung [2018] 2 HKLRD 386. Mr. Lui also pointed out that the facts of HKSAR v 紀鎮基 (transliteration: Kei Chun-kei), HCMA 273/2013, 16 September 2013, unreported were especially similar to those of the present case. That case likewise involved the offence of assaulting a police officer, contrary to section 63 of the Police Force Ordinance, with protesters or demonstrators, ignoring the police’s appeal, moving onto the carriageway and creating an impact on the hearing of the police officers with high-pitched and piercing noises. That case was therefore said to be of value to the present case. In Kei Chun-kei, the starting point was 6 week’s imprisonment, which the Court of First Instance did not find manifestly excessive.

22.  Mr. Lui summarized the gravity of the present case in 7 points:

(1)  The respondent blatantly attacked the police officers under a tense atmosphere when people at the scene were having their emotions running high;

(2)  The respondent targeted at the police with foul and insulting language when the overall situation of Hong Kong during that time was chaotic;

(3)  On the evening in question, the protest against the amendment to the Fugitive Offenders Ordinance ended around 7:30 in the vicinity of Tsim Sha Tsui. When the incident took place, the protesters were dispersing to Mongkok along Nathan Road. People at the scene would probably be prompted to join in the crime under the circumstances;

(4)  Having committed Charge 1, the respondent ignored the advice of Tam Man Ho and insisted staying at the scene to commit Charge 2;

(5)  The respondent committed Charge 2 with intent, when nobody had provoked him and there had not been any conflicts;

(6)  Although the defence stressed that there was no direct bodily contact between the respondent and the officers, the fact is that the respondent charged at the police cordon directly (Charge 1), and that the physical injury inflicted upon the police superintendent was not at all temporary (Charge 2);

(7)  The two charges were independent charges involving different victims. The latter should be an aggravating factor to the guilt of the former.

C2.  Ground 2

23.  Mr. Lui asserted that from his submission of no case to answer, his line of defence, mitigation as well as grounds of appeal, one can see that the respondent had not shown any genuine remorse. The prerequisite for a community service order was therefore not satisfied. Mr. Lui was of the view that there were no exceptional circumstances in the case which make community service order a suitable sentencing option. Regarding the risk of the respondent re-offending, Mr. Lui submitted that the respondent admitted during mitigation that it was not the first time that he had joined a social event. All in all, it was Mr. Lui’s submission that the trial judge failed to strike a proper balance with reference to the six sentencing factors set out by the Court of Appeal in Wong Chi Fung[39], i.e. protecting the public, meting out punishment, open condemnation, deterrence, compensation and rehabilitation and reform.

D.  The Respondent’s Reply

24.  Mr. Pang stressed that when passing sentence, the trial magistrate had not neglected the fact that the offence of assaulting a police officer generally attracts an immediate custodial sentence. With regard to the arguments put forward by Mr. Lui about the serious nature of the case, Mr. Pang replied as follows:

(1)  In her statement of findings, the trial judge had carefully summarized the respondent’s conduct and utterances as recorded in the video clips produced in court, which was indicative of her having considered what had happened during the incident that were relevant;

(2)  There was no basis for the applicant to say that the trial judge had not taken into account the chaotic situation in Hong Kong at the time;

(3)  At the scene where the incident took place, there was no protest or rally, nor was there any confrontation or tense atmosphere between the police and the public. After all, it was but the conduct of the respondent at the material time which formed the basis of prosecution. The circumstances of the present case were different from those of Kung Yat Kan, Clifford where there were throngs of people gathering at the scene on the day of “three major stoppages”. On the contrary, when the instant case took place, there were only the respondent and councillor Mr. Tam Man Ho negotiating with the police plus the journalists with their cameras in hand. It seemed that the respondent was the only person whose emotions were running really high;

(4)  As a matter of fact, there was no direct bodily contact between the respondent and the police officers; and

(5)  The two offences actually stemmed from the same incident, i.e. the refusal of the police to communicate with the respondent which triggered his discontent.

25.  Mr. Pang averred that while we did have authorities in support of passing an immediate custodial sentence in general for the offence of assaulting a police officer, it did not follow that the sentence imposed in the instant case was manifestly inadequate and the court had to take into account the actual circumstances in reaching an appropriate sentence. Mr. Pang cited HKSAR v Ogawa Shuichi, HCMA 174/1999, 13^th April, 1999, unreported and HKSAR v Chu Ka Yin [2017] 2 HKLRD 1027, saying that the Court of First Instance had previously sentenced defendants convicted of assaulting a police officer to community service orders according to individual circumstances of the case. Mr. Pang pointed out that the respondent’s crime was one of low culpability as he only meant to resolve the differences between the police and the protesters at the scene. He requested the police to stop the execution of their duty, with a view to relieving the besieged protesters staying behind the police cordon. Besides, as there were cries of “People stepping on one another” when the police were advancing, he hoped that the police would stop moving forward. By knocking at the long shield of PC 23663 and talking to Superintendent Ko with the “loudhailer”, he was hoping to draw their attention.

26.  Mr. Pang further submitted that the trial magistrate had given full consideration to whether the respondent had demonstrated genuine remorse. As to the question of weight, it is something within the scope of her discretion. The Court of Appeal should be slow to re-consider the relevant factors. About the risk of the respondent re-offending, Mr. Pang submitted that after all, the respondent was a person with a clear record, and he was no longer a councillor.

E.  Discussion

27.  It goes without saying that maintaining law and order is important to safeguarding Hong Kong’s public order. Police officers acting in the execution of their duty are symbol of law and order. Assaulting a police officer acting in the execution of his/her duty not only does harm to the officer in question, it also challenges the law and order that he/she represents. That explains why the Court of Appeal kept emphasizing in quite a number of cases that it is a serious offence to assault a police officer acting in the execution of his/her duty, for which the offender must be given a sentence that is both adequately punitive and deterrent in nature. The objective was not merely to protect the police officer acting in the execution of his/her duty, but also to preserve law and order. See Secretary for Justice v LHY [2021] HKCA 155, Paras 20-23; HKSAR v 李炳希 (transliteration: Lee Bing-hei) [2021] HKCA 293, para 21. Given the serious nature of the offence, an immediate custodial sentence would generally be imposed on someone who has committed the offence of assaulting a police officer acting in the execution of his/her duty.

28.  In the instant case, the criminal acts of the respondent were serious, which constituted an aggravating factor in terms of his culpability, for which the court must impose a sentence that is severe and deterrent.

29.  Firstly, as a matter of general sentencing principle, the court would assess the gravity of the offence and the culpability of the offender in the context of the crime: See Secretary for Justice v 潘榕偉 [2021] HKCA 510, para 38. When the respondent committed the offences, Hong Kong was going through a string of continuing and serious events involving violence, among which a lot were peaceful protests, processions or assemblies at the start which later turned into unlawful assemblies involving violence or even riots. At around 7:30 pm on the evening in question, when the protest against the amendments to the Fugitive Offenders Ordinance came to its end in Tsim Sha Tsui, the protesters dispersed along Nathan Road towards Mongkok, with a large crowd of people blocking the roads at the scene. Although there was no evidence that the large-scale unlawful blockage of the roads there involved violence at the material time, given the society’s atmosphere at the time and according to past experience, such a risk obviously existed. At the material time, the police were endeavouring to enforce the law, dispersing a large group of people taking part in the unlawful assembly and obstruction of the roads. One of the objectives was to restore road traffic as soon as possible, and the other was to prevent the road blockage from escalating into violence. It was totally unacceptable behaviour on the part of the respondent to assault two police officers who were acting in the execution of their duties on the front line.

30.  Secondly, prior to the incidents in question, there had been quite a number of occasions of physical confrontation between police officers executing their duties and people participating in unlawful activities. There were many people around when the respondent committed the offences. The atmosphere was tense at the scene. The respondent was very much agitated and his choice of words could very easily instigate resentment towards the police. Under the circumstances, the respondent’s conduct and utterances would probably work up the emotions of others to attack the police officers together or to obstruct the police while they were enforcing the law, thereby triggering a ripple effect.

31.  Thirdly, which is relevant to the second point, the respondent verbally abused the officers with rude and provocative utterances, and he even used foul language. What if some police officers could not hold it back and reacted while they were emotionally aroused, say, by using excessive force? That undoubtedly would increase the risk of confrontation between the police and members of the public.

32.  Fourthly, the trial judge pointed out in her findings of fact that the respondent committed the offences with malice.

33.  Fifthly, the respondent committed the offences at the front line of the police. What he did obviously obstructed the police in enforcing the law.

34.  Sixthly, the respondent assaulted two police officers separately within a short time. The video clips produced showed that after the respondent attacked PC 23663, Tam Man Ho grabbed him and pulled him back. Yet, he remained there at the scene and attacked Superintendent Ko just a short while later. He committed Charge 1 and Charge 2 within a short time, which obviously was an aggravating factor to his culpability.

35.  Seventhly, in respect of Charge 2, Superintendent Ko was dealing with the media when the respondent attacked him in circumstances with no provocation or confrontation whatsoever. Although Superintendent Ko had time and again asked him to stop, he just continued to shout loudly at Superintendent Ko with the loudspeaker at close quarters. His behaviour was utterly unreasonable.

36.  Eighthly, while the injury inflicted on Superintendent Ko is not permanent, it cannot be described as minor.

37.  All in all, the respondent’s crime is one of high culpability. Despite his good background and clear record, it is nonetheless a must to follow the usual sentencing principle by passing an immediate custodial sentence.

38.  Mr. Pang’s submissions did not help make the respondent less culpable.

39.  First of all, Mr. Pang submitted that the respondent was actually trying to draw the police officers’ attention when he committed the offences. He said that in relation to Charge 1, when the police officers at the front line were moving forward, there were cries of “People stepping on one another”. Therefore, the respondent knocked at PC 23663’s long shield with the bottom of the loudspeaker [sic] to draw his attention. As mentioned above, the trial magistrate had already ruled that such an argument was contrary to common sense. When Mr. Pang made submissions for the respondent on his appeal against conviction, he once again raised the same argument. However, as pointed out by Poon J in paras 24-27 of her judgment, this argument was inconsistent with the evidence, since the respondent had already assaulted PC 23663 before the cries of “People stepping on one another”. In respect of Charge 2, Superintendent Ko was at the time standing next to the respondent. There was simply no need for him to use the loudspeaker to shout at Superintendent Ko. Mr. Pang’s assertion that by doing so, the respondent was hoping to draw the attention of the superintendent was really far-fetched. As a matter of fact, the trial magistrate had already rejected that argument. In our view, it was regrettable that Mr Pang just kept running the same argument which the court had already ruled unsubstantiated.

40.  Mr. Pang also contended that the respondent actually wanted to “defuse” the tension between the police and members of the public. However, if the respondent had really wanted to “defuse” the crisis, he should have stayed calm and avoided getting emotional, and he should never have abused the officers with foul language and such derogatory and even insulting strong words. What the respondent did was at variance with his explanation that he was “defusing” the situation. Mr. Pang’s submission was absolutely untenable.

41.  Further, Mr. Pang submitted that the respondent committed the offences as his requests to see the police commander all went unheeded. Be that as it may, it cannot be a justification for reducing his culpability.

42.  Lastly, Mr. Pang submitted that by requesting the police to stop advancing and executing their duty, the respondent was actually minded to give time to the people trapped at the back of the police front line to leave. Yet, there was no evidence to show that some members of the public were trapped at the back of the police front line. Even if some members of the public were indeed trapped there, as the police moved forward, the distance between them and the police would get wider, and they would have a better chance of leaving the scene, thereby greatly reducing the chances of violent bodily contact between the two sides. Mr. Pang’s submission was literally contrary to common sense.

43.  Now, the trial judge. Not only did she fail to appreciate the seriousness of the crime, she also made the following errors of principle.

44.  Firstly, according to case authorities, in order to mete out punishment and produce a deterrent effect, assaulting a police officer acting in the execution of his/her duty is an offence which usually warrants an immediate custodial sentence. In passing sentence, the trial judge had not mentioned punishment and deterrence at all, nor had she explained why the sentencing principle on immediate imprisonment was not applicable to the respondent.

45.  Secondly, genuine remorse is in general a prerequisite for adopting a community service order. As to the meaning of genuine remorse, please refer to Secretary for Justice v Wong Chi Fung [2018] 2 HKLRD 657, para 147 and we are not repeating it here. In the present case, on the day following the incident, the respondent responded to the public and expressed regret for what he had said, but he had never apologized for committing the offences or said sorry to the police officers assaulted by him. In the statement written by him in mitigation, the respondent basically just repeated his personal opinion on the offence of assaulting a police officer. Despite him reiterating his understanding that it was law enforcement that the police were carrying out, and that he did not intend to cause obstruction to the police executing their duty, he nevertheless had not shown any genuine remorse in relation to his criminal act. The community service order report did say that the respondent was remorseful towards his misdeed, but apparently he was only feeling sorry for his family, which cannot be regarded as genuine remorse. In our view, the trial magistrate apparently must have mistaken that as genuine remorse on the part of the respondent, hence the inappropriate sentence of community service order.

46.  Thirdly, the trial magistrate adopted the recommendation of the probation officer that the respondent be placed on a community service order. However, the community service report was very brief. It merely focused on the respondent’s background and personal circumstances and emphasized that he was willing to be put on a community service order. Basing merely on the one-sided report and recommendation without elaborating on any other reasons, the trial magistrate came to the conclusion that it was appropriate to pass a sentence of community service order. That approach is wrong.

47.  Fourthly, while under exceptional circumstances, a community service order may remain an alternative sentencing option even though the offender is devoid of genuine remorse, a lack of genuine remorse is an important factor that the court needs to take into account. In the instant case, we cannot see any reason why a community service order was still considered a suitable option when there was no genuine remorse on the part of the respondent. In any event, even assuming the respondent was suitable for a community service order, in light of the gravity of his offence, it was still not appropriate for the trial judge to put him on a community service order. An immediate custodial sentence must be imposed: See Wong Chi Fung, para 142.

48.  For the foregoing reasons, this Court holds that by sentencing the respondent to a community service order, the trial magistrate was wrong in principle and the sentence was manifestly inadequate.

49.  As mentioned above, the only suitable sentencing option for the two charges concerned is one of immediate imprisonment. In terms of the length of sentence, given the gravity of the case, the starting points for Charge 1 and Charge 2 are four weeks and 10 weeks respectively. As Charge 1 and Charge 2 are separate charges, the relevant sentences should in principle run consecutively. Nevertheless, taking into account the principle of totality, 2 weeks out of the sentence for Charge 1 should run concurrently with the sentence for Charge 2, making the combined starting point one of 12 weeks.

50.  The respondent’s personal circumstances and mitigating factors put forward do not constitute justification for any reduction of sentence. That said, as it is an application for a review of sentence, and the respondent has completed 105 hours and 15 minutes of community service, we exercise our discretion and reduce the sentence by 3 weeks. The respondent needs to serve a total sentence of 9 weeks.

F.  Conclusion

51.  For the aforesaid reasons, we set aside the community service order and sentence the respondent to 9 weeks’ imprisonment instead.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Chow Wai Shun, Solicitor.