HKSAR v. KO LONG TSAI

[English Translation – 英譯本]

HCMA 132/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 132 OF 2007

(ON APPEAL FROM FLCC 2533 OF 2006)

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JUDGMENT

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1.  The appellant was charged with the following offences:

(1)   Two counts of “resisting a police officer in the due execution of his duty”, contrary to section 36(b) of the Offences against The Person Ordinance, Cap. 212 of the Laws of Hong Kong (Charges (1) and (3));

(2)   One count of “remaining in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully”, contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong (Charge (2)).

2.  The appellant pleaded guilty to charge (2) but not guilty to charges (1) and (3). After trial, the magistrate convicted him of the two charges of resisting a police officer.

3.  Regarding sentence, a term of 6 months’ imprisonment was imposed for charge (1), 15 months for charge (2) and 6 months for charge (3). The sentences imposed for charges (1) and (3) were made to run concurrently but consecutively to that for charge (2), making a total sentence of 21 months’ imprisonment.

4.  The appellant appeals against both conviction and sentence. He is represented by Ms. Annie Lai of counsel, assigned by the Director of Legal Aid, in respect of the appeal against sentence but unrepresented in respect of the appeal against conviction.

Prosecution case

5.  The prosecution case, in brief, was that two police officers, on receiving information of the appearance of a suspect, set off to track him down separately. Eventually, PW1, police sergeant 12781, discovered the appellant first. He chased after him all the way and jumped into a little stream following the appellant. Subsequently, the sergeant caught hold of the appellant but he struggled free and climbed up a hill slope. At this time, PW2, police constable 34604, heard the noises and caught up with him. The appellant resisted PW2 with his fists and legs on the slope. When the two were struggling with each other, the police sergeant went up to help and finally managed to subdue the appellant.

6.  As the appellant failed to produce documentary proof of identity, he was arrested for the offence of unlawful entry into the territory.

7.  Both the sergeant and the appellant sought medical treatment. The relevant medical report showed that the sergeant had abrasions on his arms and legs. The sergeant also complained of pain in his right palm but the X-ray examination revealed no fracture. Regarding the appellant, he claimed that he was injured in his neck and left wrist. When the doctor examined him, he indicated that he felt pain in the left side of his face, the neck, left buttock and left wrist. The doctor found that the range of movement of his neck, left buttock and left wrist was normal.

Defence case

8.  The defence case was that the appellant did not resist at all. He testified that he was born in Taiwan and later went to the Mainland to work as a fisherman. He sneaked into Hong Kong with a view to searching for his natural parents. On the day in question, he ran as soon as he saw the police. The police officer tripped over a stone when he chased him to the little stream. The appellant ran up the hill slope. PW2 caught up with him and hit him on his thigh, left wrist and left temple with the police baton. He was knocked out at that time but still had sensations. PW2’s police baton was broken in the strike, and subsequently the two police officers further hit him on various parts of his body with fists. Finally, the police dragged him into a vehicle.

9.  The appellant had a clear record.

The magistrate’s findings

10.  The magistrate found that PW1 and PW2 were truthful and accurate in their evidence while the appellant’s evidence was a pack of nonsense. He mentioned the appellant’s evidence that the police baton was even broken when PW2 hit him with it. However, according to the evidence of PW1, police batons were police weapons subject to strict control. Each baton had a serial number and there was also a record for a replacement. Police batons were never used in the incident. Besides, the medical report of the appellant only mentioned tenderness but not any visible injury mark. The evidence given by the appellant that his head was wounded and he bled as a result of the beating was indeed inconsistent with the injury as stated in the medical report.

11.  The magistrate refused to accept the appellant’s evidence and convicted him for charges 1 and 3.

Grounds of appeal against conviction

12.  The grounds of appeal raised by the appellant are basically that the police framed him up and that the version he gave in court was the true version. He said he had already complained to the magistrate when he was first brought before the magistrate in the Eastern Magistracy. Later on 30 October, he was taken to the hospital for examination of injury and photographs were taken of him showing that he had a “tumour” on his head as well as injury on his left hand, but he did not know the whereabouts of the photographs.

13.  He said when he was brought to the court for mention, the prosecution amended the charge and laid an additional charge against him. It showed that the police officers fabricated the facts to frame him up.

14.  He also said that the medical report produced in court at that time was a fake one because he had actually been assaulted by the police with the police baton which was broken in the course of the beating. He said he did not tell the magistrate that his head was wounded and he bled as a result of the beating. He only said that he had a “tumour” and injury.

15.  The appellant also told this court that he was originally represented by a Duty Lawyer but as he felt that the Duty Lawyer was biased in favour of the prosecution, he chose to defend in person and decline the service of the Duty Lawyer.

Judgment

16.  Having perused the relevant documents, I can see that the appellant had misunderstood the trial procedure. It is true that the appellant originally faced only one count of “resisting a police officer in the due execution of his duty”, but the particulars of the charge had mentioned two police officers. Later, the prosecution applied to split charge (1) into two, separately accusing the appellant of resisting the two police officers. The facts of the prosecution case had not changed at all.

17.  No one has any idea of what the appellant said about the medical report of 30 October and the photographs. He did not produce the relevant documents in court, nor did he show them to this court. Neither did the prosecution know what the appellant was referring to.

18.  Although the appellant said that he had a tumour and injury when he sought medical treatment on 30 October and that he never told the magistrate that “his head was wounded and he bled”, and he also alleged that the medical report produced in court at that time was fake (this allegation is of course groundless), the position of the hospital doctor was in fact neutral and he had no reason to be biased in favour of either the police or the appellant. Both the police officer and the appellant sought medical treatment on the day in question. The condition of the appellant was in fact inconsistent with the point that he had been assaulted with a police baton and the baton was even broken in the course of the beating.

19.  The conviction was not in any way unsafe and the appeal is dismissed.

Sentence

20.  Regarding sentence, the magistrate stated in his Reasons for Sentence that:

The defendant said in mitigation that he came to Hong Kong to search for his relatives and that he was a diligent worker in Lai Chi Kok.

A sentence of 15 months’ imprisonment is imposed for the second charge, and 6 months each for the first and third charges to run concurrently. But these 6 months are to run consecutively to the 15 months, making a total of 21 months. Having considered the totality of the sentence, I rule that 21 months are not excessive and reflect the defendant’s overall criminality in the three charges.

Grounds of appeal against sentence

21.  Ms. Lai has put forward the following grounds of appeal:

(1)   It was against the interest of justice for the magistrate not to elaborate on or explain the reasons for the sentences imposed on charges (1) and (3);

(2)   The sentence of 6 months’ imprisonment each for charges (1) and (3) was manifestly excessive; and

(3)   As all the charges arose out of the same incident, the total imprisonment of 21 months was excessive.

22.  Ms. Lai cited the cases of Yeung Yun Kwan v. The Queen, CACC 223/1981 and HKSAR v. Chan Hong Yau, HCMA 183/2002 in support of her argument that it was unfair to the appellant when the magistrate failed to tell him the reasons for imposing the higher sentence of 6 months’ imprisonment on him in this case. She also submitted that the appellate court was unable to perform its duty sufficiently in the absence of specific reasons for sentence, and that although the magistrate had mentioned that PW2 had sustained injury, he failed to describe the details of the injury.

23.  After pointing out the background of the appellant, Ms. Lai submitted that the sentence was excessive.

Respondent’s reply

24.  Miss Winnie Lam, Government Counsel for the respondent, argued that although the magistrate did not elaborate on the reasons for the sentence, the facts in this case were simple. This was a serious case in which the appellant persistently and violently resisted two police officers who were duly enforcing law and order, thereby causing injury to PW1.

25.  Citing the case of Secretary for Justice v. Ko Wai Kit [2001] 3 HKLRD 15, Miss Lam pointed out that the Court of Appeal had stated that the sentence to be imposed must carry a deterrent element, for it is vital that those engaged to execute police duties are enabled properly to do so. Miss Lam argued that the sentence was neither wrong in principle nor excessive.

Judgment

26.  Ms. Lai has criticized the magistrate for failing to get a clear picture of the background information of the appellant, including his family circumstances, before sentencing. This criticism is unfair to the magistrate. According to the transcripts, the appellant had already told the magistrate in his closing speech that he was born in Taiwan, brought to the Mainland by his adoptive father and that his natural parents might be in Hong Kong, and so on. After being convicted, the appellant kept repeating that he had not resisted the police officers. Although the magistrate had repeatedly asked the appellant if he had anything to say in “mitigation”, he did not make any response. Finally, the appellant said that what he wanted to say in “mitigation” had already been said and that his purpose of coming to Hong Kong was to look for his natural parents. As for the sentence which the magistrate should impose, the appellant did not want to say anything more. Under such circumstances, how could the magistrate get a better “understanding” of the appellant’s background?

27.  That said, the magistrate in fact did not elaborate on the reasons for sentence, neither at the time of sentencing nor in his Reasons for Sentence. It is true and known to all that the normal sentence for an offence of unlawful entry into Hong Kong is 15 months’ imprisonment on a plea of guilty, but this does not mean that the magistrate was not required to state it in the Reasons for Sentence. Besides, in this case, given the appellant’s reason for coming to Hong Kong, the magistrate should have considered whether what the appellant said would constitute “humanitarian grounds” which warranted a reduction of the sentence.

28.  On the offence of resisting a police officer, since there was no sentencing guideline, the magistrate had every reason for explaining why he considered a term of 6 months’ imprisonment an appropriate sentence.

29.  The Reasons for Sentence is what it is, a document in which a magistrate sets out his reasons for the sentence. It is unfair to the appellant and indeed improper for the magistrate not to give his reasons for the sentence and it also poses a difficulty for the appellate court in dealing with the appeal.

30.  As the magistrate did not give reasons, I must consider, in light of the facts of this case, whether the sentence was proper or manifestly excessive.

31.  The reason that the appellant gave for his coming to Hong Kong was rather special. Although the appellant had already given evidence on this question in the magistracy, the magistrate at that time was not considering whether this reason was genuine. As the respondent did not accept the appellant’s allegation, I ruled after consideration that the fairest approach would be to conduct a Newton hearing so as to give the appellant an opportunity to state his circumstances on oath and allow the respondent to cross-examine him. I would then determine the appellant’s credibility on a balance of probabilities.

32.  In brief, the appellant’s evidence was that he had all along thought that his adoptive father was his natural father and he was born on the Mainland. It was not until last year when his adoptive father was seriously ill with heart disease and coronary heart disease that he told the appellant for the first time that he was in fact born in Hsinchu, Taoyuan, Taiwan and that he was adopted from his natural parents 30 years ago, and later his natural parents went to Hong Kong. His adoptive father also told him that his natural father was called Cheung Kong (張江), who was 1.7 metres tall, of strong build and was a fisherman. His adoptive father did not know the name of his natural mother but he said that she was a kind-hearted woman.

33.  The appellant said that he got very excited after knowing the truth and wanted to reunite with his natural parents. As he did not have any birth certificate, he could not apply for proof of identity. This caused him much inconvenience and he hoped he could apply for the relevant documents after finding his natural parents. He explained that before knowing from his adoptive father that he was not his natural father, he had asked him why he did not have a “birth certificate”, but his adoptive father still lied to him at that time and told him that he did not have a “birth certificate” because he was a fisherman. He did not tell him that he was in fact born in Taiwan and that his natural parents were some other persons.

34.  The appellant said that after knowing that his natural parents were in Hong Kong, he thought that as Hong Kong was much smaller in area than Taiwan or the Mainland and his natural father was a fisherman, he would be able to find his natural parents if he tried to look for them or obtain any news of them from the communities of fishermen near the sea shore. However, since he arrived in Hong Kong, he had realized that the reality proved to be much more difficult than what he had imagined. Coupled with the difficulty posed by the language barrier, he had not eaten anything for two days since swimming to Hong Kong on 26 October. He admitted that he had no money or any documentary proof of identity on him when the police searched him.

35.  Apparently, the appellant acted rashly and came to Hong Kong without carefully working out a plan. However, I can observe from the way the appellant gave the grounds of appeal and the evidence that he was rather a man of impulse. I accept his evidence that he actually did not know that his natural parents were some other persons until 2006 and that he had no identity document. I accept that one of his purposes of coming to Hong Kong was to look for his natural parents, but I do not accept that that was his only purpose of coming to Hong Kong.

36.  Given his special background and the fact that I accept one of his purposes of coming to Hong Kong was to look for his natural parents, I exercise my discretion to slightly reduce the starting point of 15 months’ imprisonment. In my judgment, the appropriate sentence should be 12 months’ imprisonment.

37.  As for the offence of “resisting a police officer in the due execution of his duty”, I agree with the judgment of the Court of Appeal in Ko Wai Kit: police officers must be enabled to duly execute their duties. The sentence to be imposed on the offence of resisting a police officer in the due execution of his duty must carry a deterrent element, although the actual sentence will depend on the circumstances of individual cases.

38.  The appellant struggled vehemently in order to escape, thereby causing injury to the police officers. Fortunately, the injury sustained by the sergeant, PW1, was not serious. As for the extent of the injury sustained by PW2, it is in fact unclear.

39.  In Yeung Yun Kwan, the acts of resistance of the defendant were that “he pushed the detective constable, turned and ran, but was soon caught”. The magistrate imposed a sentence of 3 months’ imprisonment. Taking into account the facts of the case and the 6-month custodial sentence for the loitering offence, the Court of Appeal reduced the sentence of 3 months to 1 month.

40.  In Chan Hung Yau, the defendant was charged with “assaulting a police officer in the due execution of his duty”, to which he pleaded not guilty, and “possession of a dangerous drug”, to which he pleaded guilty. The facts showed that when the defendant was grabbed in the left hand by a police officer in the course of an arrest, he pushed the officer away and the officer fell to the ground. The magistrate sentenced the defendant to 6 months’ imprisonment. The Court of Appeal held that the sentence was excessive and reduced it to 2 months.

41.  After considering the facts of the present case and the background of the appellant, I rule that the starting point of 6 months’ imprisonment adopted in respect of charges (1) and (3) was excessive.

42.  In respect of charge (1), the appellant resisted the police sergeant, causing him actual injury. The appropriate starting point is 4 months’ imprisonment.

43.  In respect of charge (3), there was no evidence to show the actual extent of the injury sustained by PW2. The appropriate starting point is 3 months’ imprisonment.

44.  The appellant was convicted after trial and hence not entitled to the usual discount for a plea of guilty.

45.  Charges (1) and (3) evidently arose out of the same incident: the appellant attempted to escape the chase and arrest of the two police officers. The sentences should run concurrently, making a total of 4 months’ imprisonment.

46.  Charge (2) was different from charges (1) and (3) in nature, so the sentences should run consecutively. Having considered the totality of the sentences, the facts of the present case and the culpability of the defendant, I do not regard a sentence of 16 months’ imprisonment excessive. Therefore, in my judgment, the sentence should run consecutively.

47.  For the above reasons, the appeal against sentence is allowed, the sentence is set aside and substituted by the following: charge (1), 4 months’ imprisonment; charge (2), 12 months’ imprisonment; charge (3), 3 months’ imprisonment. The sentences for charges (1) and (3) are to run concurrently, making a total of 4 months, but consecutively to the 12 months imposed on charge (2). The total sentence is 16 months’ imprisonment.

48.  I note here that although I have the power on an appeal to determine the sentence afresh, I do not want to see a recurrence of what happened in this case, namely that I am required on appeal to embark on a sentencing exercise due to the magistrate’s failure to provide reasons for the sentence.