HKSAR v. LAM WAI HUNG AND ANOTHER

HCMA 333/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 333 OF 2000

(On Appeal from KTCC 174 of 2000)

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J U D G M E N T

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1. Each of these Appellants was convicted after trial on one charge of Common Assault; A1 to what was count 1, and A2 to what was count 2. Count 3, against the A2, was dismissed by the Magistrate. The Magistrate sentenced each Appellant to 3 months' imprisonment in respect of the charge on which he had been convicted. They now appeal against those sentences.

2. The grounds of appeal were that the Magistrate wrongly viewed each charge as a "serious charge" and erred by equating an offence of Common Assault simpliciter with the offence of Assaulting a Police Officer in the Due Execution of His Duty under section 36 of the Offences Against Person Ordinance, Cap.212.

3. The second ground was that the Magistrate erred by basing her sentence, in part, on the fact that the officers were intimidated, chased and/or assaulted by persons other than the Appellants.

4. The third ground of appeal was that the Magistrate wrongly failed to consider the suitability of a suspended sentence which, it was submitted, was more of a deterrent than an immediate custodial sentence.

5. Overall it was submitted that the sentence passed on each Appellant was wrong in principle and/or manifestly excessive.

6. In the course of his detailed and careful argument, Mr Wong, SC, for the Appellants, referred to the principles of sentencing which should have guided the Magistrate, the first being that an accused must be sentenced for the offence on which he was actually convicted; second, that the most lenient view of facts should be taken by a sentencing court, in particular where the facts could be interpreted for, or against, an accused and third, that a first offender should not in the ordinary cause of events be imprisoned.

7. The facts of the incident, briefly, were that the victims of each assault charge were U.S.D. hawker control officers who were on duty in uniform. The group was on patrol checking for incidents of obstruction. One incident occurred where the operators were rather slow in removing the obstruction, and in consequence, 3 of the officers became involved in a minor dispute with a woman in front of the whose shop the objects were. It appears that the officers were making inquiries about who was the owner of the goods left after other items had been removed. The woman whose shop it was, came out and scolded one of the officers.

8. At that point A1, who apparently worked in the same area, came out and spoke to the officer. He asked the officer to leave without making any trouble and asked whether or not he was giving him face and if that was not so, then "it would stir up trouble". At that point, A1 was seen to take out a portable phone and say words to the effect 'come out, come out'. Shortly thereafter, a group of 7 or 8 persons rushed out and the assaults took place. In the course of the attack, the victims were kicked and punched.

9. Counsel for the Appellants endeavoured to convince the Court that the Magistrate had overstated the seriousness of the assaults. The Magistrate, as she was entitled to do, made reference to the surrounding circumstances of the assaults in assessing the degree of the seriousness of the assaults.

10. Here, the only reasonable inference that could be drawn was that this was a deliberate, concerted attack on the officers by a group of men. The men, who had not been involved initially in the officers' attempts to clear the obstruction, had been ordered to attend, apparently, by the 1st Appellant who used his telephone to do so.

11. Although counsel for the Appellants suggested that there may have been an innocent purpose in calling the group together, that was belied by the consequent actions of the 1st and 2nd Appellant in attacking the officers. The Magistrate was quite correct to treat this as a serious offence of its type.

12. Officers such as these have an unremittingly unpleasant task. They are placed in confrontational circumstances all the time because of the nature of their work. Here they were going about duties that were routine when the attacks took place.

13. I do not agree that the Magistrate was equating the common assault with assaulting a police officer acting in the course of his duty. However, these were public officers who were carrying out their duties and were hampered in doing so. The Magistrate correctly, considered that assaults on hawker control officers, whether by disgruntled hawkers and shop-keepers, or by those persons who choose to ally themselves with such persons, could not be allowed to occur.

14. The Magistrate considered that immediate custodial sentences were appropriate. She did not specifically turn her mind to the question of suspended sentences or Community Service Orders, but I am of the view that she was correct in deciding that an immediate custodial sentence was appropriate given the circumstances of this case. The need for a deterrent element in sentences such as this is all important.

15. Where I do not agree with the Magistrate is in the length of sentence that was imposed. I do not consider that the Magistrate gave sufficient attention to the personal circumstances and the hitherto clear records of these Appellants.

16. For that reason, although I consider an immediate custodial sentence proper, I consider that the deterrent purpose would be served by a lesser period of imprisonment.

17. Accordingly, I allow each of these appeals against sentence to the extent of substituting 6 weeks imprisonment for the present sentences of 3 months imprisonment.