HKSAR v. YEUNG KI LAU

[English Translation – 英譯本]
HCMA 1092/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1092 OF 2007

(ON APPEAL FROM TWCC NO. 1991 OF 2007)

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REASONS FOR JUDGMENT

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1. The appellant was convicted after trial before the magistrate on one count of common assault, contrary to section 40 of the Offences against the Person Ordinance, Cap. 212 of the Laws of Hong Kong, and was sentenced to detention in a training centre. The appellant appealed against both the conviction and sentence. He acted in person in his appeal against conviction but was represented by Mr Albert Luk of counsel in his appeal against sentence.

2. At the hearing, the appellant of his own accord withdrew the appeal against conviction and the appeal was dismissed accordingly. At the conclusion of the hearing, I allowed the appeal against sentence, set aside the training centre order and ordered that the appellant be released immediately. My reasons for the decision are as follows. 

Facts of the case

3. The facts were very simple. At the material time, a supervisor of the Food and Environmental Hygiene Department (“FEHD”) leading a team of five members was performing duties on the road outside “Kai Bo (佳寶) Frozen Meat Shop”. They saw a woman who was wearing an apron bearing the words “Kai Bo” spit in the street (into a garbage bag placed in the street). The supervisor intended to book her but she refused to produce her identity card. Later, the proprietor of “Kai Bo” came out of the shop and told the woman not to produce her identity card. The appellant, who was a staff member of “Kai Bo” at the time, also came out of the shop. He swore at the staff of FEHD and then even forcefully elbowed the supervisor in his chest once.

4. According to the testimony of an independent defence witness, there were about 10 FEHD people “closing in on” the “manager” and the appellant. The witness also said that the group of people were quarrelling with one another and some of them used foul language.

Sentence

5. The magistrate’s reasons for sentence are set out below (page 25 of the Appeal Bundle):

21.       In my view, assaulting public officers is a serious offence. And I was told that the defendant was sentenced to detention in a training centre previously (in 2004) for a drug trafficking offence. The defendant is young (19 years of age). For the sake of making a comprehensive assessment and arriving at an appropriate sentence, the court decided to call for a few reports, including a training centre report.

22.            The court considered the training centre report two weeks later. The lawyer representing the defendant informed the court that he had explained the report to the defendant and that the defendant had indicated agreement with its contents. The report reveals that the defendant’s academic performance was unsatisfactory and he subsequently became associated with triad (Wo Shing Wo) members. He followed others to join the triad society. He then became addicted to drug, consuming what was commonly called ‘K chai’, and in the end trafficked in drugs. I do not mean to punish the defendant for a second time, but the defendant already had a rather complicated background when he was still young (19 years old).

23.       The offence in the present case, involving as it does a public officer being assaulted in the execution of his duty, is serious. Although the officer suffered only minor injuries, every person who holds a public office must in the course of work be given protection by the courts. This was not the first time that the defendant committed an offence, and he had previously experienced the unpleasantness of being held in custody. I do believe the lawyer’s submission that the defendant is a responsible and filially obedient young man. However, why did such a filially obedient person allow himself to commit an offence again?

24.       The defendant was not remorseful and was convicted after trial. Regarding young people such as the defendant who have committed serious offences and who show no remorse, the court considers and holds that, be it for the sake of reforming the defendant or upholding the overall interests of the society or protecting the victims concerned, the only appropriate penalty is detention in a training centre.

Ground of appeal

6. The ground of appeal put forward by Mr Luk is that, for an offence of common assault, the sentence of detention in a training centre as imposed by the magistrate is manifestly excessive. It is submitted that although the appellant has one previous criminal record and has previously been sentenced to a training centre, the previous offence is not of the same type as the present offence. Furthermore, in committing the offence, the appellant had only elbowed the victim in his chest once on the spur of the moment and the victim did not sustain serious injuries.

7. Mr Luk cites the following cases in support of his submission that a short period of custodial sentence has usually been imposed in similar cases:

(1)    In HKSAR v. Yao Chi Yuen (HCMA 104/2000), the appellant was convicted after trial on one count of assaulting a police officer in the execution of duty and was sentenced to 2 months’ imprisonment. The sentence was upheld on appeal.

(2)      In HKSAR v. Lam Wai Hung & Lai Yeuk Ho (HCMA 333/2000), the appellant was convicted after trial of common assault and was sentenced to 3 months’ imprisonment. The term was reduced to 6 weeks on appeal.

(3)      In HKSAR v. Chan Hung Yau (HCMA 183/2002), the appellant was convicted after trial on one of the counts of assaulting a police officer in the execution of duty and was sentenced to 6 months’ imprisonment. The term was reduced to 2 months on appeal.

(4)      In HKSAR v. Chan Wai Kwok (HCMA 569/2004), the appellant was convicted after trial of common assault and was sentenced to 14 days’ imprisonment.

(5)      In HKSAR v. Cheung Wai-lung (HCMA 12/2007), the appellant pleaded guilty to obstructing a police officer in the execution of duty and was sentenced to 4 months’ imprisonment. The term was reduced to 2 months on appeal.

8. Mr Luk submits that the training centre order imposed on the appellant is manifestly excessive. Even though the statute prescribes that the period of detention in a training centre normally ranges from 6 months to 36 months, the case of Wong Chun Cheong v. HKSAR (FACC 9/2000) indicates that the average period of detention is usually no less than 18 months. Mr Luk submits that the maximum term of imprisonment for the offence of common assault is merely 12 months, and were the appellant indeed sentenced to detention in a training centre, the actual period of detention would very likely exceed the maximum sentence for the relevant offence.

9. Mr Luk stresses that the appellant committed the offence on the spur of the moment. He refers to the background report on the appellant (pages 29 to 31 of the Appeal Bundle) which states that the appellant had reformed himself since 2004 when he was sentenced to detention in a training centre and had looked for jobs. He was in the employ of “Kai Bo” at the time of the offence, and the proprietor of “Kai Bo” is willing to continue to employ the appellant.

10. Mr Luk contends that, in all the circumstances of the present case, the training centre order is excessive.

11. Mr Luk has also submitted to the court a letter of mitigation written by District Councillor Mr Raymond Ho Man Kit for the appellant.

Judgment

12. In the case of Wong Chun Cheong, Ribeiro PJ laid down the following guidelines on the making of training centre orders:

[t]he proper approach of a court to the making of training centre orders may be summarised as follows:

(1)      The court should first be satisfied that the threshold requirements are met, ie, that the offence is punishable with imprisonment, and that the offender is aged between 14 and 21.

(2)      The court should then consider whether in the case at hand, the interest of the community requires that the rehabilitative approach should give way to a punitive or deterrent sentence. If so, the training centre option should not, save in exceptional cases, be adopted.

(3)      If it is in the interest of the community to adopt a rehabilitative approach, then the court must have regard to the offender’s character and previous conduct, as well as the circumstances of the offence in deciding whether it is expedient that he should undergo a period of training in a training centre for his reformation and for the prevention of crime.

(4)      Where the circumstances of the offence are such that a training centre order would be too lenient, the court is entitled to reject that option notwithstanding that the offender would otherwise be regarded as a suitable candidate for training.

(5)      Similarly, where the offence committed is minor and would not otherwise call for a custodial sentence, detention in a training centre would, save in exceptional cases, be inappropriate, notwithstanding the offender’s suitability as a candidate for training.

13. It is true that the appellant in the present case is aged between 14 and 21 and that it is appropriate to impose a custodial sentence for the present offence. I have, however, considered all the circumstances of the case, in particular that the appellant was subject to supervision for 3 years after his release from the training centre on 6 December 2005. The present offence was committed during the period of supervision and, if necessary, the appellant can be recalled to the training centre for detention.

14. The background information does indicate that the appellant has reformed himself and turned over a new leaf since his release from the training centre. As I understand it, the incident in question originated with a female colleague of the appellant’s who spat into a garbage bag placed in the street. It appeared that the woman, thinking what she did was lawful and failing to realise that it was in fact unlawful, refused to produce her identity card. This was followed by the appellant’s assault upon the FEHD supervisor. The independent witness pointed out that the large group of FEHD people “closed in on” the appellant and his manager. The two groups swore at one another. It appeared that it was merely out of impulse that the appellant committed the offence by elbowing the supervisor once.

15. In my judgment, on the facts of the case, a short term (4-month) custodial sentence is appropriate. The appellant started to serve the sentence on 18 October 2007 and therefore has now been held in custody for almost 3 months. I therefore order that he be immediately released.