HKSAR v. OGAWA SHUICHI

HCMA 174/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 174 OF 1999

(On appeal from ESCC 429 of 1999)

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J U D G M E N T

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1. The Appellant, a 28 year old Japanese business executive resident in Hong Kong pleaded guilty before a magistrate at Eastern court to an offence of assaulting a police officer in the due execution of her duty contrary to s. 36(b) of the Offences Against the Person Ordinance, Cap. 212.

2. He was sentenced to 21 days imprisonment and appeals that sentence.

3. The facts of the case were that on the night of the incident the Appellant was found drunk after a company party in a car park at the particularised location. He was squatting next to the shroffs office.

4. The caretaker at the car park contacted the police. The victim and another police officer arrived at the scene and approached the Appellant. An ambulance had already arrived, presumably as a result of the caretaker asking for one to attend. The Appellant declined to go to hospital in the ambulance. The ambulance left and the victim and her colleague questioned the Appellant as to his personal particulars and address.

5. At that time the Appellant suddenly grabbed the victim around the neck. She pushed him away and her colleague then arrested the Appellant.

6. The Appellant subsequently cooperated fully with the 2 officers and later admitted the offence under caution.

7. The victim was examined medically and found to have sustained a "neck injury".

8. The Appellant appeals on the following grounds which I summarise here. In doing so I do not follow the enumeration of the Perfected Grounds of Appeal filed on behalf of the Appellant.

9. The Appellant says that firstly, the learned magistrate was wrong in the circumstance of the case to regard the Appellant's drunkenness as an aggravating factor. Secondly, that the learned magistrate had insufficient material before him to allow inferences of fact as to the seriousness of the offence. Thirdly, that the learned magistrate failed to properly consider other sentencing options which were available and fourthly, the learned magistrate failed to give due weight to the Appellant's immediate cooperation with the police and to the Appellant's personal circumstances.

10. In R. v. SO Kan-ming M.A. 201/96 Leong, J said:-

"It is a serious offence to assault a police officer acting in the execution of his duty and it is one which would attract an immediate custodial sentence even for a first offence."

11. That is, as the learned magistrate said at the time of sentencing the Appellant "a point made by these courts time after time".

12. That is so. But the principle involved is not a straight-jacket. There are a very wide range of acts which may constitute an assault on a police officer. The circumstances of each case must be carefully considered.

13. So far as the circumstances of this case are concerned Mr Jenkyn-Jones for the Appellant argues that the learned magistrate was wrong to treat the drunken state of the Appellant as an aggravating factor.

14. I must say I agree. As the learned magistrate rightly observed at the time of sentence the Appellant had chosen to get himself drunk and had to accept responsibility for that decision. But although drunkenness may be the underlying cause of an offence, that does not make it necessarily an aggravating factor. There in my view must be something in the consumption of alcohol which makes the offence worse than otherwise it may have been or which facilitates the commission of the offence.

15. In the case of R. v. Lindlay (1980) 2 Cr. Ap. R. 3, sometimes cited as authority for statements to the effect that drunkenness may be an aggravating factor, the Defendant had plied himself and 2 underage teenage girls with drink before committing offences upon them. The effect of the alcohol was to overbear the will of the victims. In that case the Defendants intoxication of himself and the girls, in respect of whom he had a duty of care, was regarded as an aggravating factor.

16. But in the present case the Appellant did not drink to facilitate the commission of the offence, he committed the offence because he was already drunk. Nor did his drunkenness worsen the assault. In my view the Appellant should, in the present case, have been sentenced for the assault itself. Not for the condition he was in at the time of the assault.

17. I accept also Mr Jenkyn-Jones argument that the material before the magistrate as to the severity of the neck injury sustained by the victim or the force with which the Appellant grabbed her neck was non existent. In that regard there appears to have been something placed before the magistrate establishing the victim suffered what he described at the time as "what is vaguely called a neck injury". There was nothing else provided to the learned magistrate to allow him to assess either the severity of the assault or its degree of effect upon the victim.

18. I note in the Brief Facts of the case the victim is said to have pushed the Appellant away after he grabbed her. On the face of it in the absence of any other evidence the assault appears to have been minor, short lived and not repeated and from the facts seems to have been an act of stupidity rather than malice. In particular there does not appear to have been evidence to substantiate the magistrates finding that the assault was a "potentially a very dangerous and life threatening act".

19. From the facts presented to the magistrate there does not appear to have been established any intention by the Appellant to assault the officer so as to avoid arrest or of in any way causing injury to the officer. Any such an intention of course would have brought the case within the principle of R. v. SO Kan-ming. The assault, from the Brief Facts presented to the magistrate, appears to have been little more than a drunken and momentary holding of the officer by the neck.

20. For these reasons I am satisfied that the magistrate may have proceeded on an assumption or assumptions not necessarily supported by the facts provided to him as to the seriousness of the assault itself and the unspecified neck injury it caused.

21. Giving the Appellant credit for his plea of guilty, and what I am sure is his genuine remorse, his clear record and his personal circumstances it seems to me that something other than a custodial sentence should have been considered. For that reason I called for a community service order report. I might emphasise that a community service order is a real and effective alternative to prison. Its purpose is both punishment and deterrence. That report has been provided to me. The Appellant is regarded as suitable for community service and appropriate work can be found for him.

(Procedural matters dealt with).

22. In my view given the circumstances I have referred to a community services order is the most appropriate sentence on the facts of this case.

23. And accordingly I order the sentence of 21 days imprisonment be set aside and be substituted by an order for the Appellant to perform 80 hours of community service in accordance with the conditions I have described to him.