THE QUEEN v. KAM TIN PO(D2)

IN THE COURT OF APPEAL

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JUDGMENT

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Li, V.-P.:

1. This is a sad case. In the early hours on the 11th of July last year a part of police went on their legitimate duty in search of criminals, arms and stolen gold in a set of premises. They knocked at the front door which was locked. The occupant of the premises was particularly fussy. He saw people in plain clothes. He refused to accept that they were police officers. He dialed 999 four or five times until uniformed police officers arrived to authenticate the status of the people in plain clothes. It was only after a long delay that he opened the door.

2. Once the door was opened and the police party gained entry, one of the officers, the applicant in this case, went berserk. The occupant was handcuffed in his own home and hit. He fell down. Then he was indiscriminately kicked. This was evidenced by the bruises and abrasions he suffered which were all over his body. It was really a miracle that he did not sustain more serious injuries as a result of this beating. In the circumstances, the applicant was charged with another officer, the leader of the team, with the offence of assault occasioning actual bodily harm.

3. After witness was called at the trial the applicant changed his plea to one of guilty. His colleague, his senior officer, was in the event acquitted of the charge.

4. For this offence the applicant was sentenced to 7 months immediate custodial sentence. He now applies for leave to appeal against sentence on the ground that the sentence is manifestly excessive. In the course of passing sentence, the judge accepted that the applicant had hitherto been of exemplary character and that the assault was an isolated incident, but said that it was an assault over a period. of time. However, the judge considered that instead of exercising his duty to protect innocent people, the applicant abused his trust as a peace officer. He considered his good record. He knew at the time of his sentence what would be the result to the applicant of an immediate custodial sentence. All these factors were taken into consideration. The judge referred, in his sentence, to Thomas Principles of Sentencing where it said that when a person was in a position of trust and abused his power like a police officer, he deserved an immediate custodial sentence. He followed the case of Lewis ⁽¹⁾ . That obviously was a far more serious case as far as the injuries inflicted were concerned. But the principle is the same.

5. In his usual persuasive manner, Mr. Keane suggests that the judge had not considered all the factors which caused the offence. The applicant was in a stressed condition and was frustrated by the stubborn resistance of this victim to open the door for the party in an urgent investigation of a crime or in search of criminals. Not enough credit, it was urged, had been given to his plea of guilty or to his good character. At the time learned counsel for the defence in the court below did not realise the judge was thinking of the case of Lewis ⁽¹⁾ and had no chance to refer him to some of the cases available in Hong Kong.

6. Mr. Keane submitted to us that there was the case of a sergeant facing exactly the same charge being given one months custodial sentence by the magistrate and that sentence on appeal was reduced to one month's suspended sentence. Another case is The Attorney General v. HON Lit-hom ⁽²⁾. A police officer was convicted of, assault and was not given a custodial sentence at all. On appeal, my brother Cons said:

"However, with every respect to the Magistrate, we think he gave insufficient weight to one of those factors, namely that the Respondent is a sergeant of police and that he committed the offence while he was on duty. We take it to be a general rule that when a person clothed with some authority intended to be used for the public good deliberately abuses that authority to gratify a private sense of power, then public condemnation of that conduct must be marked by some positive act of the court, no matter however well that person may have appeared to his superiors to have exercised that or similar authority previously."

With this observation I respectfully agree. That is why I say it is a very sad case. The good character aspect and the effect of the sentence had been considered by the trial judge. He had to take into consideration that this victim was handcuffed and beaten up in his own home. A private citizen has the right to guard himself and his home against any possible risk of robbery in these days. Unfortunately, so many robbers do pretend to be people of authority. Everything that was done, albeit in a stubborn manner by the victim, was justifiable. What was grossly unjustifiable was the conduct of the applicant. Having gained entry, and having handcuffed the victim, he started to kick him indiscriminately. This is a conduct which is not only a disgrace on the part of the applicant, but also a disgrace to the whole team of police officers who were present and in particular the leader, Inspector Roberts. When they observed or heard one of their team went berserk in a manner like the applicant, it was their first duty to restrain him. That wasn't done. Had it been done, the consequences would not be half as serious.

7. Having said all these, we come back to the proposition whether the sentence is manifestly excessive. It is a serious offence. It is a gross abuse of trust. It brings disrepute to the good name of the Royal Hong Kong Police Force. It frightens innocent citizens now who attempt to protect their own home against possible risks. We do not feel that 7 months is manifestly excessive. However, we are informed that in the event of an immediate custodial sentence being imposed, the applicant would loose his pension rights, let alone his job and his quarters. The trial judge must be well aware of these facts. We have no power to make any recommendation regarding pension. Nevertheless I would like to make the observation that as this man had been of exemplary character in the past 16 years of service and this is one slip which ruins his whole career. He has earned, at least, for the past 16 years his pension. While we do not see our way to reduce the sentence, we do hope that the proper authority would consider not forfeiting his pension at all. We do not see why the Treasury should benefit from his misdeed and take away what he has already earned. The application for leave to appeal against sentence is refused.

(1)    1976 Crim. L. R. 144

(2)    Application for Review No. 8 of 1982