HKSAR v. LOCKYER ROBERT KENNETH

DCCC 706/2018

[2019] HKDC 441

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 706 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant was convicted upon his own pleas of a total of four charges, namely one charge of possession of an offensive weapon, contrary to section 17 of the Summary Offences Ordinance, Cap. 228 (Charge 2), and three charges of resisting a police officer in due execution of his duty, contrary to section 36(b) of the Offences against the Person Ordinance, Cap. 212 (Charges 3 to 5).

2.  There was originally a charge of criminal intimidation (Charge 1), which was not proceeded with and left on court file upon the prosecution’s application. 

The admitted facts

3.  The defendant, an Australian national, came to Hong Kong in around 2013.  He is married and living with his wife on the second floor of a three-storey village house in Lamma Island. 

4.  On 16 June 2018, after an environmental cleaning campaign, the defendant, his wife and other people went to a pub at Yung Shue Wan, where, according to the defendant’s wife, the defendant drank three bottles of beer.  Feeling that the defendant was tipsy, the wife persuaded the defendant to go home and the defendant appeared to be unhappy but ultimately agreed to.

5.  At about 4:30 pm, the defendant and his wife had a dispute over the defendant’s drinking problem.  At one stage, the wife tried to leave home to let the defendant calm down.  The defendant followed, held the wife, and tried to push her back into the village house.  The wife refused to go inside the house, shouted for help, and caused the attention of their neighbours, including one Mr Ruehl, who tried to intervene.  The defendant told Mr Ruehl to go away.  He then pushed his wife back inside their village house and closed the gate.

6.  The case was reported and uniformed police officers arrived at scene at around 5:23 pm.  SPC51979 revealed his police identity and requested the defendant to open the gate, to which the defendant refused.  The wife tried to come down to open the gate, but was grabbed by the defendant back inside the apartment on the second floor.  The defendant was observed to be in an emotional state.

7.  Later, the defendant went up to the roof of the village house by himself.  He held a knife in his right hand and waved it around for three to four times, followed by moves to sharpen it at the roof side.  The knife was about 38.3 cm long and the length of the blade was about 23.7 cm long.  When the defendant was acting as aforesaid, the knife was sheathed.

8.  Another police officer tried to talk to the defendant from the rooftop of Mr Ruehl’s residence, but to no avail.  The defendant further pulled the curtains on the roof and went inside.  As a result, the police were unable to observe the circumstances inside the house.

9.  Then the police officers tried to climb over from an adjoining village house and entered the rooftop of the defendant’s house.  Seeing the police officers, the defendant turned around and tried to leave. 

10.  SPC51979 went forward to try to stop the defendant, upon which the defendant used his right hand to pull the knife from his sheath at his waist side by 2 to 3 inches.  SPC51979 immediately blocked the defendant’s act with his round shield, but the defendant continued to struggle and move around as SPC51979 tried to subdue him.

11.  Suddenly, the defendant turned around and kneeled on the floor.  SPC51979 held on to both hands of the defendant and SPC47146 pressed the defendant on the floor.  The defendant was lying on the floor facing downwards.  SPC51979 was then clamping the defendant’s head between his thighs in an effort to restrain him, who continued to shout and struggle with body movements against the two officers.

12.  Suddenly, the defendant’s left hand broke free from SPC51979’s grasp.  The defendant then used his left hand to hold onto the handle of SPC51979’s revolver, which was in a holster on the right waist of the officer.  It was standard equipment issued to the officer in his execution of duties and had been buttoned when the officer started his duties that day.

13.  The defendant further shouted, “Use the gun, use the gun.”  SPC51979 immediately alerted the other officers present that the defendant attempted to snatch his revolver. 

14.  At that stage, Sergeant 49517 had arrived and he immediately removed the defendant’s hand from the handle of the revolver and pressed the hand to the ground.  Finding that the holster was unbuttoned, SPC51979 immediately buttoned it up.  Sergeant 49517 further removed the knife from the defendant’s waist side.

15.  SPC47146 then applied handcuffs on the defendant and declared arrest on him at around 5:58 pm, but the defendant continued to shout and struggle. 

16.  Two other police officers arrived to render assistance.  Although the defendant was pressed to the ground, he continued to struggle.  When SPC46547 went to press the defendant’s legs with his body, his right side of the back was hit by the defendant’s leg.  The defendant was eventually subdued by the officers.

17.  Several police officers were injured in this case:

(a) SPC51979 suffered from tenderness over right anterior upper rib and right distal forearm. There was abrasion over right forearm;

(b) SPC47146 was found to suffer from tenderness over left wrist over ulnar side with mild abrasion;

(c) Sergeant 49571 was found to suffer from tenderness on right jawline. There was a small laceration measuring approximately 3 mm on the central aspect of the lower lip, with associated swelling;

(d) SPC46547 suffered from focal tenderness over right posterior rib, with a fractured right posterior rib with minimal displacement;

(e) SPC51133 suffered from mild right middle finger sprain.

18.  All officers were treated and discharged on the same day.

19.  The defendant was also found to have an abrasion and bleeding on his forehead and right ear.  He was taken to hospital for medical treatment on the same day.  He was diagnosed with haematoma on his right forehead, bruise and superficial abrasion on his face.  There was a 3-cm-long laceration on the back of his right ear, with bruising.

The defendant’s background

20.  Provisional psychiatric assessment was that the defendant suffered from bipolar affective disorder with mixed manic episode. He was therefore admitted to the psychiatric unit of Pamela Youde Nethersole Eastern Hospital.

21.  During his admission to the hospital from 17 June 2018 to 22 June 2018, the provisional psychiatric diagnosis was bipolar affective disorder, manic episode and alcohol intoxication.  After treatment, he remained clinically stable and emotionally calm in ward care, with no active psychotic features and no obvious alcohol withdrawal symptoms.

22.  During his detention for this case, the defendant was assessed by psychiatrists of Siu Lam Psychiatric Centre. 

23.  Dr Kavin Chow Kit-wan assessed the defendant, who had psychiatric history of bipolar disorder in Australia before he came to Hong Kong.  The defendant did not continue to have psychiatric follow-up.  He further reduced the dosage of his medicine and later stopped it altogether since his stay in Hong Kong.  Mental state examination found that he was calm and co-operative during the interview with relevant and coherent speech.  No other psychotic symptom was found, apart from residual voices allegedly calling the defendant’s name.  He was assessed to be of bipolar affective disorder and likely to be in an alcohol intoxicated state at the time of the offence, and that he did not require psychiatric inpatient treatment but outpatient management for his psychiatric problem.  He was found mentally fit to plead.

24.  Another doctor, Dr Lui Sing Heung, assessed the defendant as suffering from bipolar affective disorder complicated by alcohol intoxication at the time of the offences.  His mental condition improved on resumption of medication.

25.  At the time of the offences, the defendant was 49 years old and he resided with his family, including his daughter, then aged 4 years old, who was not present at the residence at the time of the offences. The defendant was the executive manager of AquaMeridian Conservation and Education Foundation based in Hong Kong.  He has no previous convictions in Hong Kong.  He has a Doctor’s degree.  Before coming to Hong Kong in 2013, he had been working in China for seven years.

Mitigation

26.  Mr Arthur on behalf of the defendant submitted a written skeleton submissions to mitigate for him. 

27.  First of all, it was stressed that the defendant had been in custody since 16 June 2018, which means over 9 months by now. 

28.  A bundle of character reference letters from colleagues, friends, a Legislative Council member, a District Council member and others were submitted, where they all spoke highly of him about his character, environmental protection, conservation and education work in Hong Kong.

29.  It is submitted by the defence that regard should be given to his utmost good character and serious contribution to the community.

30.  The defendant is a married man residing with his wife and daughter on Lamma Island.  He always accepted the blame for his action in this case.  He is deeply ashamed for what he did.

31.  The defendant had submitted a handwritten letter.  In that letter, he stressed that he intended as a priority to repair the damage that he had done to his family and also the damage done to the professional relationship with others. 

32.  He emphasised that he planned to continue with psychiatric treatment and support and is now determined to stay alcohol free. 

33.  He offered his sincere apologies to each of the officers involved in this case and felt much regret for having scared his wife. 

34.  He proposed to stay in a residence on the southern Lamma Island where there are no bars and it is therefore a proof of his determination to stay alcohol free.  It is also his intention to continue with his conservation as well as education work in the island. 

35.  Lastly, he said he now has serious reflection on this case.  He is determined to avoid alcohol and to continue with his psychiatric medication and treatment.  He said what he did in this case was out of character and he would not re-offend.

36.  Several medical reports were also produced. They confirmed the defendant’s bipolar affective disorder with mixed manic episode and complicated by alcohol intoxication.  In particular, Dr Chow in his report dated 3 July 2018 said that the defendant was aware of his mental problem and willing to seek treatment, and Dr Pao in his report dated 5 July 2018 opined that the incident stemmed from the defendant’s use of alcohol rather than the bipolar disorder.  There is no acute risk of violence to himself or others and therefore inpatient treatment is not necessary.

37.  The defence emphasised that the defendant pleaded guilty to all the charges he is now convicted of and the defence asked the court to exercise its discretion to give him the full one-third discount because of the unusual circumstances in this case.

38.  It is submitted that the defendant has always made it clear that the only issue is that of the original Charge 3 before amendment, which was a charge of attempted possession of arms.  Defence wrote to the prosecution as early as on 4 December 2018 with a copy of a Court of Appeal decision, HKSAR v Jang Youngsu CACC 56/2014, arguing that the firearms charge in this case was inappropriate.  That was before the case was eventually set down for trial on 13 December 2018.

39.  The defence continued writing and talking to the prosecution afterwards but it was not until 27 March 2019 that the original Charge 3 was amended to one of resisting a police officer and the defendant tendered his guilty plea right away on the same day.

40.  Several authorities were also submitted by the defence.  I have read all of them.  Some of them are related to the original Charge 3 of firearm, which may not be of much relevance now.

41.  For Charge 2, possession of an offensive weapon, it is suggested that the facts were bizarre.  No threats or words had been uttered.  The waving of the knife, though constituted a threat, but it must be noted that the knife was all along in the sheath. 

42.  For Charges 3, 4 and 5, the resisting charges, they were all, as submitted, committed in the course of drunken strenuous resistance to police officers. 

43.  In particular, for Charge 3, there was only a brief and a momentary placing of his hand on the handle of the revolver.  It was submitted that the defendant’s physical position was absolutely crucial in understanding the facts.  He was kneeling with his face touching the ground and his head clamped between the officer’s legs.  He was shouting, struggling and twisting.  It was very difficult, as submitted, for him to even see the firearm.

44.  For the other two resisting charges, Charges 4 and 5, it is submitted that the facts speak for themselves.  The injuries caused to the officers were minor or at the low end.

The sentences

45.  I first deal with Charge 2, possession of offensive weapon, for which the maximum penalty is 2 years’ imprisonment and a fine of $5,000. 

46.  What was involved in this case was a knife with a blade of about 23 cm.  The defendant at the material time was waving it three or four times on the rooftop.  The knife was in its sheath.  At a later stage when the defendant tried to take the knife out of its sheath by 2 or 3 inches, he was immediately stopped by police officers.

47.  I have considered two cases submitted by Mr Arthur for the defence.

48.  In HKSAR v Laxman Chadaro [2014] 5 HKLRD 735, the defendant in that case was also in a drunken state.  He went into a police station with a 12-inch cleaver in his hand.  Police officers were very much alert and had to warn him several times by drawing a pistol at him before he surrendered.

49.  In HKSAR v Cheng Chi Wah  HCMA 1255/2004, the appellant picked up an aluminium pipe of about 90 cm in length and waved it towards other people in a threatening manner.  That was done during a confrontation between two groups of people in Mong Kok area.

50.  In the said two cases, the starting point of the possession of offensive weapon charge was 6 months’ imprisonment.

51.  By comparison, I find the facts of this case less serious, in particular, when the knife in this case had never been fully taken out from its sheath.  Therefore, for Charge 2, I consider the appropriate starting point to be one of 4½ months’ imprisonment.

52.  I now proceed to consider the three resisting charges, Charges 3, 4 and 5.  The maximum penalty is 2 years’ imprisonment for each of them. 

53.  It was said as early as in 2001, in Secretary for Justice v Ko Wai Kit [2001] 3 HKLRD 751, at page 758, that the sentence for this sort of offence must carry a heavy deterrent element, for it is vital that those engage to execute police duties are enabled properly to do so.  There are, however, understandably, no specific tariffs for offences like that, as the circumstances for each case can vary so much.

54.  I first consider Charge 3, which is apparently the most serious one.  Though there are no tariffs as aforesaid, it may be helpful to consider cases of similar facts for reference, although the defendants in other similar cases may not be charged with the same offence.

55.  In R v Yau Koon Yau, CAAR 12/1984, the respondent was involved in a few charges, one of which is the theft of a police revolver, and for that charge he was sentenced to 2 years’ imprisonment after plea.  The relevant facts disclosed that the respondent, whilst being under investigation in a police station, he suddenly snatched a revolver from an officer.  He managed to get it.  He pointed it at others and managed to get away.  He surrendered to the police station, with the revolver unfired after two days.  The sentences for this and other offences were not interfered with by the Court of Appeal in the Attorney General’s application for review, though they were considered to be unusually lenient.

56.  In another case, HKSAR v Lau Chi Man (劉志文) (my transliteration) CACC 46/2003, judgment in Chinese, the applicant again was involved in a few charges, one of which was an attempted robbery involving a police revolver.  For that offence, he was sentenced to 2 years’ imprisonment after plea.  In that case, the applicant after arrest was taken to hospital, escorted by police officer.  While on his way in an ambulance and while he was being guarded by an officer sitting on his left-hand side, he suddenly grabbed the officer’s revolver.  There was a struggle, during which the officer fell onto the floor inside the ambulance.  The applicant was eventually subdued by other people inside the ambulance.  Under caution, the applicant admitted that he tried to snatch the officer’s gun so that he could make good his escape.  The sentence remained unchanged after appeal. 

57.  It so happened that in the said two cases, both involving police revolver, the sentences for the charges are both 2 years’ imprisonment after plea and they remained undisturbed after application for review or criminal appeal in the Court of Appeal.

58.  I am of the view that what happened in this case was significantly less serious than the said two cases, for this defendant was only able to touch the handle of the police revolver, which was all along in the holster on the right waist of the officer.  He was restrained by two or three officers at the material time.  He was lying on the ground, facing downwards, with his head clamped between the thighs of one of the officers.  He was never able to have a full grab of the gun and it is most unlikely he could do so in view of his awkward position as described.

59.  Therefore, unlike what happened in Yau Koon Yau, the defendant here had never come in control of the gun, let alone used it.  Also, unlike what happened in Lau Chi Man, there was no admission or any evidence to show how or what the defendant intended to use or do with the gun, if he could get it.

60.  I noted that the holster of the officer in this case was found unbuttoned afterwards.  It was however unclear as to whether it was the defendant who intentionally managed to do that or it was unbuttoned accidentally during the struggle.

61.  I also noted that the defendant at the material time shouted, “Use the gun, use the gun.”  No doubt by saying that, it showed his knowledge of the gun.  It was however unclear as to what exactly the defendant meant by saying that.  In particular, it is not in dispute that he was under influence of alcohol at the material time.

62.  Lastly, I also take note of the maximum penalty for this subject offence of resisting charge being 2 years’ imprisonment.

63.  Having considered all the circumstances, I consider that the proper starting point for Charge 3 should be one of 13½ months’ imprisonment.

64.  Charges 4 and 5 are also resisting charges. They are much less serious than Charge 3 in terms of facts and circumstances. These two offences arose from the struggle between the defendant and other officers, where they eventually suffered minor injuries which required immediate treatment but not hospitalisation.

65.  I have considered, for reference, two similar cases.  In HKSAR v Chiu Kwok Wai Caesar CACC 294/2006, the applicant put up resistance when a police officer tried to arrest him for a criminal offence.  He pushed the officer onto the ground, causing injury to his arms, which required stitches.  A starting point of 4 months’ imprisonment was endorsed by the Court of Appeal.

66.  In HKSAR v Liu Lin Feng CACC 206/2011 (judgment dated 28 February 2012), the applicant stole an iPhone in a train compartment.  He was pursued by two police officers who attempted to arrest him.  He resisted and struggled and, as a result, causing minor injuries to those two officers.  The Court of Appeal considered that the starting point of 4½ months for that resisting charge to be entirely appropriate.

67.  I accordingly adopt a starting point of 4½ months for each of Charges 4 and 5.

68.  There are two mitigating factors in this case. 

69.  The more significant one is the defendant’s guilty pleas.  Strictly speaking, the pleas were tendered after the fixing of the trial dates and before the first day of the trial.  Under the authority HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, the defendant should not be entitled to the full one-third discount, which is reserved for those who indicated their guilty pleas on the plea day.  The normal discount for cases similar to that of the defendant should be between 20% and 25%.

70.  It is however emphasised in Ngo Van Nam that the discount is subject to the overriding discretion of the sentencing judge with regard to the time at which the indication of pleas was given and to all other relevant circumstances.

71.  In fact, as I understand from the parties, there was indication of pleas to some of the charges as early as in October 2018 and at one stage the parties had come to an agreement on the pleas.  There were however twists and turns and, as a result, the plea bargain did not materialise before the trial dates were fixed.

72.  The main reason is that the parties had difference in view over the Court of Appeal’s observations in the firearm charge of similar facts as expressed in the said case of Jang Youngsu. It was not until 27 March 2019, after discussion and argument in court, that the prosecution was prepared to amend the original charge to another resisting charge and the defendant pleaded guilty forthwith.

73.  It is also worth noting that Charges 4 and 5 were also amended from wounding or inflicting grievous bodily harm under section 19 of Cap. 212 to the current resisting charges, under an amended charge sheet dated 26 March 2019.  That was after the fixing of the trial dates, which was done on 13 December 2018.

74.  I do not see the necessity of going into the details of the correspondences between the parties since October 2018.  Suffice it to say, in view of what I have summarised about the amendment of Charges 3 to 5 and the relevant circumstances, I am prepared, in view of the exceptional circumstances of this case, to exercise my discretion to give the full one-third discount to the defendant.

75.  There is one more mitigation which requires consideration.  That is about the defendant’s character.  I am prepared to consider him as a person of positive good character in view of his work as an environmentalist in conservation and education fields, details of which can be found in the character reference letters.  In fact, on the date of the offence, prior to the commission of these offences, the defendant and his wife and others took part in an environmental cleaning campaign.

76.  In HKSAR v Wen Zelang [2006] 4 HKLRD 460, Yeung JA (as he then was) at paragraph 18 of the judgment, reiterating the principle in HKSAR v Leung Shuk Man [2002] 3 HKC 424, that the discount of one-third for those who pleaded guilty at an appropriate time is usually the full extent of the discount to be given.  That relates to previous “good character” in the sense of “clear record”.  Nevertheless, “positive good character” may well entitle the defendant to a slightly enhanced discount such as in the example of an offender who has worked without payment for a charitable cause with the community.

77.  The same point was echoed in HKSAR v Cheng Kelly Kit Yin [2014] 4 HKLRD 34, that the Court of Appeal endorsed the sentencing judge’s additional 3 months’ reduction to reflect the defendant’s positive good character.

78.  As said, I recognise the environmental protection, conservation and education work of the defendant and regard him as a person of positive good character.  I have also taken into account his clear record, his good education and family background, as well as his bipolar affective disorder with drinking problem and his determination to reform.

79.  I am prepared to give him an extra reduction of 3 months on top of the one-third discount for the guilty pleas.

80.  Looking at all the offences and the circumstances globally, I am of the view that the overall sentence after plea should be 15 months’ imprisonment, the starting point being 22½ months. 

81.  As said, another 3 months’ reduction would be given to reflect his positive good character and his background.

82.  The final total sentence should be one of 12 months’ imprisonment.

83.  In summary:

(a) for Charge 2, I adopt a starting point of 4½ months’ imprisonment, reduce it by one-third for the guilty plea, which makes it 3 months’ imprisonment;

(b) for Charge 3, I adopt a starting point of 13½ months’ imprisonment, reduce it by one-third for the guilty plea. The sentence would be 9 months’ imprisonment;

(c) for Charges 4 and 5, I adopt a starting point of 4½ months’ imprisonment for each, reduce each by one-third for the guilty plea. The sentence for each is 3 months’ imprisonment.

84.  To apply the totality principle and to achieve the said overall sentence of 12 months’ imprisonment, I order the sentence for Charge 3 to run consecutively to that for Charge 2, and the two sentences for Charges 4 and 5 respectively both to run concurrently to those sentences under Charge 2 and 3.

85.  The total sentence is one of 12 months’ imprisonment.