HKSAR v. NGAI CHUN KWONG

HCMA 329/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 329 OF 2005

(ON APPEAL FROM TWCC 3798 OF 2004)

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J U D G M E N T

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1.  The Appellant, a man of previous good character in his mid 20s, appeared before J T Glass, Esquire in the Magistrate’s Court at Tsuen Wan, to face a charge of assaulting a police officer in the due execution of his duty, alternatively, a charge of common assault.

2.  These charges arose out an incident in which a plainclothes police officer, who was trying to apprehend a suspect at the time, was pushed to the ground by the Appellant.

3.  If the Appellant knew that the person whom he pushed was a police officer, the irresistible inference would be that the Appellant’s objective was to prevent a lawful arrest.  But it was accepted that he did not know that the person whom he pushed was a police officer, and his plea of guilty on the alternative charge of common assault was accepted.

4.  For common assault, the Magistrate adopted a starting point of 3 months.  Giving the Appellant a one-third discount for his guilty plea, the Magistrate sentenced the Appellant to 2 months’ imprisonment.

5.  The Appellant now appeals against this sentence.  On the basis that he did not know that the person whom he pushed was a police officer, there is no discernible reason why the Appellant assaulted him.  Be that as it may, he pleaded guilty to common assault, and had to be sentenced for that.  When sentencing a person, a court will proceed on the most lenient view that can reasonably be taken of the facts.  Doing so, I am satisfied that the just course is to suspend the Appellant’s sentence.

6.  Accordingly, I allow the appeal to suspend the Appellant’s sentence of 2 months’ imprisonment for a period of one year.

7.  He should understand and remember this.  If he is convicted of another offence punishable with imprisonment committed during that one-year period, the court may, in addition to punishing him for that other offence, do as follows.  It may order that this suspended sentence take effect for the original 2-month term or for a shorter term or even for a longer term.  Or the court may vary this order of suspension by substituting for this one-year suspension another period of suspension of up to 3 years from the date of such variation.