HKSAR v. RAI BINAY

HCMA598/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.598 OF 2006

(ON APPEAL FROM KCCC 2687 OF 2006)

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J U D G M E N T

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1. The appellant appeals against the sentence of 6 months’ imprisonment which was imposed upon him by Mr Douglas Yau following his conviction after trial of the offence of wilfully obstructing DPC 49878, a police officer, in the execution of his duty, contrary to section 36(b) of the Offences against the Person Ordinance, Cap.212.  The offence is alleged to have occurred on 28 April 2006.

2. The magistrate found the following facts proved :

“When Prosecution Witness 1, DPC49878, PW1, was on plainclothes duty at about 10.30 pm on 28 April this year, at Mody Road near Bristol Avenue, on anti-dangerous drugs patrol, he spotted the defendant walking alone on the street, looking around.  A police vehicle went past him, whereupon he immediately ran inside a nearby building.  PW1 found that very suspicious and he went to that building to have a search but was not able to find the Defendant.

At about 10.55 pm, PW1 was walking along Nathan Road near Mody Road with Acting Superintendent, Mr Howard, PW2, when he saw the Defendant again, this time sitting on the railings at the side of the road.  PW1 proceeded with PW2 towards the Defendant, intending to search and question him because they suspected he might be in possession of dangerous drugs.  PW1 walked up to the Defendant from in front of him, while PW2 went up from behind.  PW1 walked up to the Defendant, showed him his police warrant card and revealed his police identity.  He then requested the Defendant to show him his identity card.  Suddenly, still sitting on the railing, the Defendant pushed PW1 away with both hands.  He then jumped off the railing and wanted to leave the scene.  PW2 felt that the Defendant was trying to run away and so he grabbed the Defendant’s left arm while PW1 held on to the Defendant’s right arm.  PW2 told the Defendant that he was a police officer and that he just wanted to search him.  The Defendant reacted very violently and he pulled them along Mody Road.  The Defendant was very strong and he fought quite hard.  There were other police officers present and they joined in to try to subdue the Defendant.  As the Defendant’s struggling became more and more violent, PW2 decided they could control him better if they could put him down on the ground.  There were four police officers trying to control the Defendant at that stage.  PW2 put his right leg in front of the Defendant and he fell to the ground with the Defendant to make sure that he was not injured when he brought him down together with him.  When they were on the ground, the Defendant continued to struggle very violently. 

Throughout the struggling, PW2 kept telling the Defendant that they were the police and just wanted to search him.  The Defendant was swearing in Cantonese and was very agitated at that time.  Eventually, DPC47273 declared arrest on the Defendant for an obstructing a police officer in the due execution of his duty and he was handcuffed while he was on the ground.  The Defendant was later taken by police vehicle away from the scene.”

3. The appellant was aged 28.  He had 15 previous convictions in the previous 10 years and had received custodial sentences on a number of occasions.  Three of his convictions were for possession of an offensive weapon, including his most recent conviction in November 2005 when he had been sentenced to 6 months’ imprisonment.  Most significantly, in August 2001, he was sentenced to 2 months’ imprisonment for assaulting a police officer in the execution of his duty.

4. In his reasons for sentence, the magistrate said this :

“The Defendant is a persistent offender and the situation warranted a deterrent sentence.  A police officer must be protected when they are performing their duties.  Anyone who obstructs them must face the consequences.  The circumstances of the obstruction were rather serious but I have taken into consideration that nothing illegal was found on the Defendant and it might have been over-reaction on his part when being told that he was to be questioned by the police.  I adopted a starting point of 6 months’ imprisonment and since he was convicted after trial, no discount was given.”

5. Before this court, the appellant has asked for a reduction of sentence so he can support his family.  I am satisfied that a significant sentence of imprisonment was warranted in the circumstances.  The appellant in this case was involved in a violent struggle with the police over some time that night.  A deterrent sentence was inevitable in the circumstances.  The appellant had been sentenced to 2 months’ imprisonment in 2001 for assaulting a police officer.  That appears to have had no effect in deterring him from committing this offence.  Any sentence passed by the magistrate had to bring home to the appellant that this sort of conduct would not be tolerated.  It is apparent from the transcript that the magistrate considered a suspended sentence but that option was not available because it was an excepted offence.

6. Mr Melwaney, for the respondent, has fairly suggested that the sentence of 6 months’ imprisonment was on the high side in the light of the authorities.  He points to the fact that no police officer was injured.

7. I consider there may be some force in this comment.  In my view, a sentence of 4 months’ imprisonment would meet the justice of this case.  I allow the appeal against sentence and substitute a sentence of 4 months’ imprisonment.