HKSAR v. NG CHIN YUEN

HCMA99/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 99 OF 2005

(ON APPEAL FROM STCC 825 OF 2005)

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J U D G M E N T

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1. This is an appeal against sentence.  The Appellant was sentenced to 3 weeks’ imprisonment following his pleas of guilty to two offences of obstructing a public officer in the performance of his public duty under section 23 of the Summary Offences Ordinance. 

2. The Appellant’s wife was a cooked-food hawker.  She was not licensed.  Officers sought to take away her trolley.  The Appellant came by, saw what was happening and intervened to obstruct them and caused a struggle to occur between him and them.  As a result of the struggle, one of the officers had some redness on the right pulp of a finger and there was tenderness to his right wrist, and the other officer had a chest-wall contusion. 

3. The Appellant is a 56-year-old man.  He has one previous conviction in 1992 for which he received a suspended sentence for criminal intimidation.  Other than that, he says he has spent 27 years in Hong Kong keeping himself out of trouble. 

4. Not surprisingly, the magistrate took the view that causing that degree of violence in the struggle with officers doing their duty merited a short immediate term of imprisonment and on the way the case was presented to the magistrate below I would have taken exactly the same course. 

5. However, what I have been told today, and what the magistrate was not told, was that this Appellant had been unemployed for a number of years but, prior to this offence, had managed to get himself a job in a market delivering vegetables.  He came along today in front of me and said, “Look, I am 56 years old.  I am not going to get other employment.  If I go to prison, even if it is only for 3 weeks, I am going to lose that employment.”  And he said, “My family does not, and has not, applied for welfare payments,” and, in effect, he demonstrated a pride in his ability to work and provide and he did not want the family to look to the state for what he regarded as charity. 

6. I was not minded just to accept his word about the job.  He had not come with a letter from the employer.  The employment had not been raised by  the duty lawyer below.  So what we did was to ask him for the telephone number this morning.  He produced it on a  document that did bear the name of a vegetable trader and we had the officer in the case who instructs counsel for the Respondent ring the number and make some inquiries.  The result is that the employment was confirmed.  Its duration was such that it had commenced before the commission of this offence.  It was, in effect, a casual job where he would be replaced if he was absent but the officer managed to establish from the employer that one or two days’ leave would not result in him losing the opportunity to continue working. 

7. It seems to me the court should want to achieve two things - one is to protect public officers by imposing an immediate sentence of imprisonment.  On the other hand, the court would not want to see this man lose a job that it had been difficult for him to find.  So what I am minded to do is reduce the 21 days’ imprisonment to 2 days.  I think it is right that offences of this nature be met with immediate imprisonment and it is right that the Appellant feel the punishment of such an order, albeit for a very short time. 

8. Given the duration of the imprisonment is so short, I am also minded to look to either a fine or some compensation.  He does not earn much.  He has been on bail and he has $2,000 cash bail which he tells me is available for me to dispose of and I judge that a fair order would be to take that money and order that $1,000 of it go to the victim in the 1st charge and another $1,000 to the victim in the 2nd charge.  They had their bumps and scrapes and they can have some compensation for it which I assess to be $1,000 in each case. 

9. The appeal is allowed to that extent and I wish to repeat I have no criticism at all of  the magistrate’s sentence, given the information available to him.