HKSAR v. WONG CHI KAI

[English Translation – 英譯本]
HCMA 353/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 353 OF 2015

(ON APPEAL FROM STCC NO 496 OF 2015)

________________

________________

REASONS FOR JUDGMENT

1.  The appellant was originally charged for one charge of assaulting a police officer in the due execution of his duty, contrary to section 36(b) of the Offences against the Persons Ordinance, Cap 212 of the Laws of Hong Kong (Charge 1) and one charge of common assault, contrary to section 40 of the same Offences against the Persons Ordinance (Charge 2). The appellant admitted Charge 1 but denied Charge 2.  In respect of Charge 1, he was sentenced to 2 months’ imprisonment upon his conviction.  In respect of Charge 2, the Prosecution ceased pursuing the matter. The appellant now seeks to appeal against his sentence.

2.  After the hearing, I allow the appeal and substitute the sentence of 2 months’ imprisonment with one of 6 weeks for the following reasons.

Facts

3.  The magistrate set out the facts admitted by the appellant in her reasons for sentence as follows:

“Admitted facts

3. At about 3 pm on 15^th February 2015, some ‘anti-mainland parallel-traders’ protesters picketed Shatin New Town Plaza chanting ‘Defend Shatin. Done with multiple entry visa’.

4. At about 3:10 pm the same day, having seen that a man pulling a suitcase (hereinafter ‘Mr A’) was surrounded by people at the scene demanding him to return to the mainland and yelling at him in provocation, Woman Chief Police Inspector Chiang Sui Tsing (1^st Prosecution Witness) instructed Sergeant 45058 to escort Mr A to leave the scene.

5. At this juncture, the appellant approached Mr A and leveled criticism on him nearby saying that Mr A was a parallel trader and demanded him to return to the mainland. While the appellant kept using abusive language against Mr A, he was kicking Mr A’s suitcase and pushing Mr A with his hands. When 1^st Prosecution Witness approached to intervene, the appellant asked, ‘Are you Madam?’ 1^st Prosecution Witness immediately produced her police warrant card to the appellant and indicated to him that she was ‘Madam’ and hung the police warrant card on her person.

6. 1^st Prosecution Witness continued to proceed with Mr A with the intention of removing him from the scene, namely the corridor off shop nos 312-313 of Shatin New Town Plaza. Mr A was in the middle while Sergeant 45058 was before him and 1^st Prosecution Witness after. After the trio of 1^st Prosecution Witness had walked for about one minute, the appellant pulled the hair of 1^st Prosecution Witness from behind causing her to tilt her head backward and lose balance. Soon enough, 1^st Prosecution Witness regained her balance to look backward and asked who pulled her hair. As there was no response, 1^st Prosecution Witness continued to escort Mr A to leave the scene.

7. At 6:17 pm on 15^th February 2015, Chief Police Inspector Leung Kwok Wing arrested the appellant at Shatin New Town Plaza.

8. In the police record of interview taken from the appellant, the appellant admitted that he had pulled the hair of 1^st Prosecution Witness once. He explained that he had consumed half a dozen beers. He was a bit angry and venting his anger.

9. 1^st Prosecution Witness went to the Prince of Wales Hospital in Shatin on 16^th February 2015 at 10.09 am for medical attention.  She was diagnosed to have suffered from pain in the right neck and shoulder.”

Appellant’s Background

4.  The appellant is 35 years of age.  He had worked as a supermarket assistant.  He was a part-time aluminium window worker at the time of the incident.  He has two previous convictions, both related to violence.  The first was for the offence of assault occasioning actual bodily harm and the second assaulting a police officer in the due execution of his duty (the date of sentence for the second conviction record was 20^th April 2015).

Mitigation

5.  In his mitigation, defence counsel pointed out that the appellant had immediately stopped criticizing Mr A and withdrawn to the back of the crowd after realising that 1^st Prosecution Witness was a police officer.  There was a period of time when he was calm.  It was on the spur of the moment that the appellant committed the crime because he had been harmed by pepper spray before and was at the time affected by the environment and atmosphere at the scene.  Although 1^st Prosecution Witness did not see who pulled her hair, the appellant nevertheless admitted under caution that he had pulled her hair.  It reflected that the appellant was remorseful and the gravity of the case was relatively low in view of the fact that the appellant did not assault 1^st Prosecution Witness with fists and kicks.

Reasons for sentence

6.  The following is the magistrate’s reasons for sentence:

“Reasons for sentence

15. Before sentencing, I have called for a Community Service Report as requested by the Defence. The report is not favourable. It stated that the appellant had the habit of drug abuse. The appellant was ‘evading’ the questions put to him by the Probation Officer and did not honestly provide information. The Probation Officer also took the view that the appellant was shirking responsibility and excused himself for committing the crime by the consumption of alcohol and the highly charged atmosphere at the scene. The Probation Officer therefore does not recommend a Community Service Order.

16. The maximum penalty for this offence is 2 years’ imprisonment.

17. There is no sentencing guideline set down in respect of this offence by the appeal court. However, the appeal court had indicated explicitly that this is a serious offence whereby an immediate custodial sentence is the norm. The sentence must serve a deterrent effect so as to protect the safety of police officers in the due execution of their duty.

18. Having considered the facts of this case, I consider that the facts are serious. According to the mitigation submitted by defence counsel, when 1^st Prosecution Witness revealed her identity to the appellant, the appellant had already kept quiet and withdrawn to the back of the crowd. At that time, no one intervened or took any action against him. Apparently, the appellant should have calmed down already; otherwise, he would not have withdrawn to the back of the crowd. However, in the lapse of one minute, the appellant pulled 1^st Prosecution Witness’ hair from behind. It shows that the appellant was not acting on the spur of the moment or impetuously. Although I have misread ‘one minute’ as ‘several minutes’ in the course of pronouncing the sentence, it has no significance on my verdict, namely, the appellant did not commit the crime on the spur of the moment.

19. The incident occurred in a shopping mall with heavy pedestrian traffic. There might have onlookers watching Mr A being escorted by the police. The appellant, although fully aware that the person was a police officer, still disregarded the law and blatantly challenged the authority of the law enforcement officer under the nose of the public. He pulled 1^st Prosecution Witness’ hair from behind without being subject to any provocation at all. It was fortunate that she was agile enough to regain balance soon after losing it. But when she asked who was pulling her, the appellant made no admission right away.

20. The court has to reprimand such act of assaulting a police officer and deliver the right message to the public that the court will protect the safety of law enforcement officers in the due execution of their duty and would not let anyone get away with assaulting a police officer in the due execution of his duty.

21. Based on the following authorities, the court will generally adopt a starting point of 2 to 3 months in respect of cases of not so serious facts:

(1) HKSAR v Chiu Ka Man（趙家文）, HCMA 89/2003: The appellant used abusive language against a police officer in the due execution of his duty. The case does not involve any violence. The appeal court was of the view that it was more appropriate to impose 1 months’ imprisonment instead after the appellant had pleaded guilty.

(2) HKSAR v Yau Chi Yuen, HCMA 104/2000: The appellant used abuse language against the police officer and punched his face occasioning injury when the police officer put him under arrest. The appeal court affirmed that 2 months’ imprisonment after trial was the correct sentence imposed on the appellant.

(3) HKSAR v Chow Ming（周明）, HCMA 678/2005: when the police officer was about to search the appellant, the appellant elbowed the upper arm of the police officer. The appeal court considered that 2 months’ imprisonment after trial was the appropriate sentence imposed on the appellant.

(4) HKSAR v Cheng Tai Tung（鄭大東）, HCMA 360/2013: The appellant became emotional while the police officer was making enquiries. He pushed the police officer down and struggled violently. The appellant was sentenced to 2 months’ imprisonment upon his own plea. The appeal court dismissed his appeal.

(5) HKSAR v Au Chun Kit （區俊傑）, HCMA 676/2013: When the police officers tried to put the appellant under arrest, the appellant punched one officer on the left of his chest causing him to fall onto the ground and pushed another officer occasioning injuries to both of them. The appeal court affirmed that it was absolutely not manifestly excessive to adopt a starting point of 3 months’ imprisonment for two charges of assaulting a police officer.

(6) HKSAR v Chan Ka Wah（陳嘉華）, HCMA 300/2013: When the police officer approached to make enquiries and requested to conduct a body search, the appellant assaulted the police officer on his face and punched him on his abdomen thrice. The appellant was sentenced to 2 months’ imprisonment upon his own plea. The appeal court dismissed his appeal.

(7) HKSAR v Siu Fun Chi（蕭奮志）, HCMA 1081/2001: When the police officer revealed his identity to the appellant, the appellant elbowed the chest of the police officer. The appellant was sentenced to 3 months’ imprisonment after trial. The appeal court considered that the starting point was appropriate.

(8) HKSAR v Wong Chi Keung Chi（黃志強）, HCMA 490/2003: While the police officer was making enquiries of the appellant, the appellant confronted the police officer with abusive language, stuck his face close to the police officer, blew a puff of smoke before spitting on the face of the police officer. The appeal court considered that the appropriate sentence after trial was 4 month’s imprisonment.

22. In respect of the present case, I have considered the facts I have just mentioned, it was not on the spur of the moment that the appellant committed the crime.  Having also taken into account the above authorities, I adopt a starting point of 3 months’ imprisonment and reduce it to 2 months by giving credit to the appellant’s guilty plea.  There being no other effective mitigating factors in this case to further reduce the sentence.  I therefore sentence the appellant to 2 months’ imprisonment.”

Grounds of appeal

7.  Mr Victor Lee, defence counsel for the appellant, advanced three grounds of appeal:

(1) the magistrate had failed to take into full consideration the influence of alcohol and the environment at the time of the incident when the appellant committed the crime;

(2) the magistrate erred in taking the view that the appellant did not commit the crime on the spur of the moment; and

(3) 2 months’ imprisonment is manifestly excessive or wrong in principle.

Consideration of the Court

8.  I am of the view that being under the influence of alcohol when the appellant committed the crime is not a mitigating factor.  If the appellant uses his drunkenness as an excuse to blatantly assault an officer who is enforcing the law, it would be in contrary an aggravating factor.  In the present case, the magistrate did not enhance the sentence because the appellant was under the influence of alcohol.

9.  I have to emphasise that it is the duty of the court to protect police officers in the due execution of their duty.  I also reject the appellant’s claim that he only committed the crime on the spur of the moment because he had been pepper-sprayed before and was affected by the environment at that time.  As it transpires from the facts admitted by the appellant and the mitigation submitted by the defence that: When Mr A was taken away by the police officer, the appellant had withdrawn to the back of the crowd and was already calm down for a period of time.  But he suddenly pulled the hair of the woman police inspector from behind (that is when the woman police inspector was totally not on guard) after one odd minute causing her to lose balance.  It was fortunate that the woman police inspector did not fall immediately upon being pulled.  The act of the appellant at that time was apparently not committed on the spur of the moment or affected by the environment at the time.  As the magistrate had pointed out in her reasons for sentence, the appellant was in a place with heavy pedestrian traffic but yet he disregarded the law and blatantly challenged the law enforcement officer under the nose of the public fully aware that the person was a police officer.  I am of the view that the act of the appellant could definitely not be said to be not serious.

10.  I consider that the only concern is whether the appellant’s conviction entered on 20^th April 2015 for a similar offence should be also taken into account so far as the starting point is concerned.

11.  It can be seen from the materials produced by parties that the case for which the appellant was convicted on April 20 occurred on 24^th January 2015.  At that time, a group of supporters for “Occupy Central” and another group of people with different opinions were converging at the junction of Sai Yeung Choi Street and Nelson Street in Mongkok.    Police officers were summoned to the scene to maintain order. At that time, there was another person inciting the crowd.  When police officers followed this person who was about to flee, the appellant suddenly punched one of the police officers on his right shoulder.  The appellant was charged for one charge of “Assaulting a police officer in the due execution of his duty” contrary to section 63 of the Police Force Ordinance, Cap 232 of the Laws of Hong Kong.  The appellant pleaded guilty on April 20 and was fined $2,000.

12.  During the appeal hearing of the present case, I have invited parties to make submissions on which date, namely, the date of occurrence of the present offence (ie, February 15) or the date of sentence (ie, May 22) the Court should adopt when considering whether the appellant has a previous conviction for “assaulting a police officer in the due execution of his duty” for the purpose of sentencing.  However, neither the Prosecution nor the Defence could provide any authority to indicate which date is appropriate for consideration.

13.  Mr Victor Lee, counsel for the appellant, cited HKSAR v Chan Pui Chi[1] and Secretary for the Department of Justice v Yeung Wing Hong[2] （楊泳康）as authorities, emphasizing that the court would only increase the starting point when an offender is persistent in committing an offence and previous sentences have been proven to be no deterrent at all.  Mr Lee argued that the appellant was not yet convicted nor sentenced at the time when the present offence was committed, the above principle therefore does not apply absent the fact that the appellant had been sanctioned by the law but still re-offend having realized the nature of the penalty he was going to receive. 

14.  But Mr Edmond Lee, Senior Assistant Director of Public Prosecutions, for the Prosecution, emphasized that on the day of the offence, although the appellant did not have similar previous offence, there was only a lapse of 20 days between the two cases.  The two cases were not consolidated for hearing only because the two cases involved different divisions of police station and another defendant was involved in the case of January 15.  If the two cases were consolidated for hearing, sentencing would be heavier than one case alone.  Furthermore, the offence for which the appellant was convicted in the present case (in contravention of the Offences against the Persons Ordinance) is more serious than the offence convicted on January 15 (in contravention of the “Police Force Ordinance”).

15.  Mr Lee further emphasized that, by reading from the magistrate’s reasons for sentence, the appellant’s previous convictions had not been taken into consideration when passing sentence although she had mentioned that the appellant had two previous criminal convictions.

16.  Mr Lee also rightly pointed out that I have discretion when considering the appropriateness of sentencing.

17.  As a matter of fact, the magistrate did not state explicitly in her reasons for sentence that she had taken into account the two previous criminal convictions of the appellant.  Nonetheless, when the magistrate pronounced the sentence verbally, she had emphasized that the appellant had two previous criminal convictions and both convictions were related to violence.  She pointed out that the conviction dated 20 April 2015 “was even an offence of ‘assaulting a police officer’” and the appellant was fined on that occasion.  Under such circumstance, I cannot rule out the possibility that the magistrate had taken into account similar criminal convictions of the appellant.

18.  Having taken into account all the circumstances, I am of the view that the court should consider that the appellant did not have this criminal conviction of “assaulting a police officer in the execution of duty” at the time of the present offence in order to achieve fairness towards him.  Moreover, I am of the view that even the court also takes into consideration the criminal conviction, the appellant is not yet a “persistent offender” that warrants the need to increase the appropriate starting point.

19.  This appeal is conducted by way of a “retrial”.  Having considered all the circumstances of the facts of the present case and the background of the appellant, I consider that the appropriate starting point is 9 weeks’ imprisonment.  The appellant is entitled to a one third discount for his guilty plea.  The sentence should be therefore one of 6 weeks’ imprisonment.

Conclusion

20.  Based on the above reasons, I allow the appeal.  The original sentence of 2 months’ imprisonment is set aside and substituted with one of 6 weeks’ imprisonment.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung, Barrister-at-law.