HKSAR v. MULWA, NAOMI KATUMBI

HCMA86/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 86 OF 2008

(ON APPEAL FROM KCCC 7557 OF 2007)

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J U D G M E N T

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1.  This is an appeal against a sentence of 8 weeks’ imprisonment that was imposed after trial, which had resulted in a conviction for assaulting a police officer in the execution of his duty.

2.  All I need to say about the facts leading to the conviction are that late at night, at a 7-Eleven, there was an incident which justified the police being called.  They attended there and found this Appellant.  She was clearly drunk.  She was told to go home.  She became abusive to the officer, telling him to “fuck off,” and she then spat into his face, quite deliberately.  She was arrested and immediately said she was sorry.  Unfortunately, that remorse did not extend to the proceedings in the Magistracy, where she showed a complete lack of remorse and fought the trial on a completely unrealistic basis.

3.  There was nothing wrong at all with the sentence of 8 weeks’ imprisonment, especially bearing in mind the fact that this lady had on two previous occasions been before the court and been fined modest amounts for similar offences.

4.  When the matter first came before me, I heard a full mitigation, which included these matters.  Firstly, that the Appellant had a good job here as a teacher, she being from Kenya; that back in Kenya there were people who depended on the money she sent there; that the sentence of immediate imprisonment at that stage would involve the loss of that employment; and that the root of her problem was one of an abuse of alcohol and that she had taken real steps to address that problem, attending meetings of Alcoholics Anonymous, and a gentleman attended to speak on her behalf to that effect.

5.  Despite all of that mitigation, I was not persuaded to reduce or do away with that sentence of imprisonment.  It was a very nasty thing to have done.  She had had her warnings before, and the magistrate, in my view, was quite right to pass that sentence.  What I was prepared to do, however, was to adjourn the matter for a short time so that the sentence of imprisonment fell within the school holidays.  That had the probability of saving her job, but it was not a guarantee that it would be saved.

6.  Today the case is back before me and what has occurred in the meantime is that she has been granted a new contract.  I will not go into the details of it all but she has to renew a visa, and, by a certain date, attend the Immigration Department and be ready to take up her duties under the new contract.  Mr Acton-Bond today says if the sentence of 8 weeks were to stand and she received full remission, she would spend 38 days in custody.  If I were minded today to alter the sentence to one of 30 days, she would serve those 30 days because of the rules about remission but it would then leave her free to continue the good work she does as a teacher and it would meet the mitigation that was advanced last time, without really diminishing the force of the punishment she is to receive.

7.  In the end, for a period of 8 days only, I am minded to go along with that.  So without in any way suggesting that this sentence was wrong - I fully support the magistrate in the sentence he passed at the time - what I will do, for the very special reasons I have just advanced, is reduce the sentence of imprisonment here to one of 30 days.

8.  The lady has been on bail and she has $20,000 bail money, which is offered to me to punish her further.  It occurs to me - I do not know whether he will find out about this - that the police officer, if he knows that the sentence was reduced on appeal it might cross his mind that perhaps he was not getting the support that policemen look to from the courts.  There are difficulties about awarding compensation to police officers in all cases who are the subjects of assault, but in the special circumstances of this case I can see no reason why, if that money is available he should not be compensated for the distressing and unpleasant experience that he was subjected to by reason of this Appellant’s criminal behaviour.

9.  Of that $20,000, therefore, what I shall do is say that $7,500 shall be payable as compensation to PW1, and that the balance will be paid as a fine.  That is designed to hurt, and I know it will because there is a fairly tight budget on the teacher’s salary and she supports people back in her own country.  Even though I have reduced the sentence in this case, I wish to make it absolutely clear that conduct like this is not to be tolerated.