HKSAR v. YEUNG WAN HON

HCMA323/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.323 OF 2000

(ON APPEAL FROM TWCC 275 OF 2000)

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J U D G M E N T

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1. The appellant was convicted after trial of the offence of common assault. He was sentenced by Ms L K Loh, sitting at Tsuen Wan Magistracy, to seven days' imprisonment.

2. The facts of the case are quite simply that on 15 January 2000, as a traffic warden was issuing a parking ticket to the appellant's private car, which at the time was parked outside a restaurant in Kwai Chung, the appellant came out and scolded him with foul language. There was then a verbal exchange of some sort between the two men and as the traffic warden continued to write out the ticket, the appellant took some coins, which I am now told numbered eight, from his pocket and threw them at the warden, hitting him on the chest. The appellant then picked up the coins and went back inside the restaurant. When the police were called by the traffic warden, the appellant came out of the restaurant and was subsequently arrested by the police.

3. He has abandoned his appeal against conviction. The appeal against sentence, as advanced by Mr Boyton on his behalf, is quite simply on the basis that the criminality involved in the case does not deserve the imprisonment which was passed by the magistrate. He points out that there was in fact no physical contact between the appellant and the victim; the victim suffered no injuries; there were no weapons used; and that the assault was very trivial. The assault might have been trivial, but as has been said in the past, an assault upon a public officer whilst he is executing his duty in a public place is a serious offence. It is a serious offence because public officers who discharge their duties in a public place have to be protected by the law. As Leung J in R. v. So Kan Ming, MA201/1996 said :

"Let me make it quite clear that there is no doubt that it is a serious offence to assault a police officer acting in the execution of his duty and it is one which would attrack an immediate custodial sentence even for a first offence."

4. What happened in the instant case was an assault, but it was an assault which was more technical than actual because I suspect the only thing which was injured as a result of this incident was the officer's dignity which he lost in a public place. Now, it is, of course, wrong to make a public officer lose his dignity in that fashion, but I daresay that in these days of greater tolerance, public officers in practice tend to be more tolerant than they were many years ago.

5. The sentence imposed by the magistrate was, of course, not manifestly excessive nor wrong in principle. The appellant has a bad criminal record starting from 1974 and finishing in 1998. During those years, he was sentenced to imprisonment on no less than five occasions, but it is true that the last time he was sentenced to imprisonment was in January 1996 when he was sentenced to six months for possession of dangerous drugs. The offence after that, in April 1998, was for making off without payment and he was fined $1,000. It is manifest that since then he has stayed away from trouble and he is now a married man with a young son of 21/2 years old. Not only that, but since 1997, he has been gainfully employed and he has been working for a company as what has been termed as an "on-site assistant" at a monthly salary of $12,000. His work record appears to be good because in a letter dated 2 March, his employers stated that the appellant was an honest, hardworking and diligent worker.

6. The magistrate sentenced him to seven days' imprisonment because, having started off with a starting point of six weeks and then reducing it to seven days, she was conscious of the fact that if he were sentenced to imprisonment for a longer period, he would lose his job and she was no doubt sympathetic that he should not lose his job. It was submitted to her in mitigation that the appellant would lose his job if he were to apply for seven days' leave so as to be able to serve the sentence, but this was obviously rejected by the magistrate who said in the Statement of Findings and Reasons for Sentence that the seven days would be long enough to penalize him for the offence, but short enough for him to get leave from his job and to resume his life and his job after the sentence.

7. I think the basis for that statement was probably on the assumption that everybody has annual leave and it would not be a problem for the appellant to apply for seven days' leave to serve the sentence. However, Mr Boyton has today produced a letter dated 27 May from his employer, signed by the manager, which refers to the appellant's application for a seven-day leave starting from tomorrow and continuing that the company regrets to inform him that his post was essential for daily operations of the management of the busy Shing Mun site of which he is in charge and therefore his application was rejected. It continues that his post should be replaced by another workman immediately should he take leave. That letter was, of course, not before the magistrate and therefore the magistrate could not have known that that is the attitude of the appellant's employer. I am not going into the rights and wrongs of whether the appellant's employer should or should not have granted the application for a seven-day leave. The reality of the situation is if the appellant persists in asking for these seven days' leave, he would lose his job. Mr Boyton has reminded the court of the difficulties in finding a job in the present economic climate.

8. I will give the appellant the opportunity to keep his job. He has apparently mended his ways and this particular incident was unfortunate. Hopefully he has learnt his lesson from it and the offence will not recur.

9. In the circumstances, the appeal is allowed and the sentence of imprisonment is quashed and substituted by a fine of $5,000, $2,500 of which is to be paid from the bail money with the appellant's consent. The balance of $2,500 to be paid within seven days.