HKSAR v. CHU CHI HO

[English Translation – 英譯本]

DCCC 331/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 331 OF 2015

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Reasons for Sentence

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Background

1. On 14 January 2016, the defendant was found guilty of one count of misconduct in public office after trial.

Facts of the case

2. The defendant was a serving police sergeant who had been attached to District Special Duties Squad 3 of Yau-Tsim District since 18 August 2013. His everyday duties included conducting observation and carrying out anti-vice activities on the premises situated at level 2, that is the 1st floor of the Chinese tenement building at numbers 139-141 Temple Street, Yau Ma Tei. There was record of a number of operations. He also liaised with the landlords or tenants of the premises in question to warn them not to allow the premises to be used for the purpose of prostitution.

3. PW1, Ms X, aged 25, was a mainlander with the alias “Big Eye Girl”. She came to Hong Kong on 27 May 2014 for prostitution and had received several customers on that day. In the early morning of 28 May, she met the defendant in Temple Street. He asked her questions to the effect of: “How much (?)”. She said $200 by way of reply. The defendant was entirely clear at that time that X was engaging in prostitution and would provide sexual service to him for the reward of $200. The defendant followed her to enter room 4, 1/F, number 141 where he again confirmed with her that the charge for sexual service was $200. After that, he produced his warrant card to her and revealed his police identity, ordered her to produce her papers from which he learned that she came to Hong Kong from the mainland. He asked her to provide him sexual service. X did so under duress. In the incident, the defendant told X that she would be locked up for 7 days and did not pay for the sexual service that he had obtained. Not only that, he ordered her to leave Hong Kong within 3 hours or else she would be locked up for 7 days. X therefore packed her luggage and left the premises. In order to prevent X from returning to the premises in question to continue to practise prostitution, the defendant took away her keys. After that, he followed her and met up with another man. They followed X and Siu Lai (transliteration) to make sure that they boarded a taxi and left.

4. The defendant was a public officer. As a police officer, he was duty-bound to enforce the law. On matters relating to his public duties which included carrying out anti-vice operations, he, without reasonable excuse or justification, wilfully and intentionally culpably misconducted himself, that is, when knowing full well that X had breached her conditions of stay, not only did the he not make enquiries of her, he revealed his police identity to her to procure sexual service from her without paying for it afterwards. He went so far as to threaten X that she must leave Hong Kong within 3 hours or she would be locked up for 7 days. This was serious and not trivial misconduct. And the defendant was clear that it was a criminal offence.

Submissions on mitigation

5. The defendant is aged 44. He was educated up to Form 5 and has a clear criminal record. He is married and his wife works as a clerk. They have two sons who are aged 16 and 14 respectively. The defendant has had a spine surgery and is on long-term medication. He joined the Police Force in 1989 and was promoted to the rank of Police Sergeant in 2012. His work performance was outstanding.

6. The main thrust of the mitigation the defence submitted was even the defendant himself could not explain the incident in question. The matter only concerned $200 and he was aware that the police was going to mount an anti-vice operation in the area in question around noon of 28 May 2014. As the matter now stands, the defendant has to bear criminal liability for his foolish act, lost his career, pension and accommodation, and brought grave hardship to his family.  The defence urged the court to pass as lenient a sentence as was possible on him as the outcome of the trial has already brought catastrophe to him.

Discussion

7. Misconduct in public office is a serious offence. There is reasonable expectation in Hong Kong society that public officers are faithful to their office, that they perform the duties of their office to serve the community, that they will not abuse their capacity as public officer conferred on them by the society and that they do not obtain personal gain, hurt people or act to the disadvantage of the society with the powers they can lawfully exercise in executing public duties.

8. The primary function of a police officer is to uphold law and order. His main duty is to enforce the law. If for the sake of personal gain, he turns a blind eye to criminal acts, or even brings about or encourages criminal acts, or solicits advantage with threat when a criminal should be or is being investigated, such behaviour fundamentally damages the function of a police officer and completely breaches his law enforcement duties.  Besides, it is a very serious kind of the same type of cases if the incident concerns a wilful failure to carry out criminal investigation or apprehension, or even causes a suspect or criminal to leave the territory to obstruct the investigation carried out by other police officers.

9. In this case, the defendant clearly knew that X was engaging in prostitution and hence had breached her conditions of stay. Not only did he not carry out investigation, he threatened her in order to get free sexual service. After that, he drove her away and ordered her to leave the territory. In view of the above considerations, I take the view that the facts of the case are extremely serious.

10. In HKSAR v Chow Koon Shing[1] , the defendant was a police constable. At the time in question, he ordered a lady to turn round to make her write with the document up against a wall. He made use of the opportunity to take an up-skirt photo of her with a mobile phone. The defendant was convicted on one count of misconduct in public office after trial and was sentenced to six months’ imprisonment. In dismissing the appeal, the Court of First Instance said:-

23. The Magistrate considered that to ensure public confidence in law enforcement officers was maintained, the courts must take a serious view of police officers who abused their positions. The Appellant, a formerly upstanding officer, had had a significant fall from grace. There was evidence of his good character before the court, but as the Appellant was a police officer that was neither surprising, nor of much mitigatory weight. A custodial sentence was inevitable. After taking likely financial disadvantages into account, the Magistrate decided that 6 months’ imprisonment was the appropriate term.

24. I share the view of the Magistrate that this was a serious offence; the Appellant abused his position as a police officer and committed the offence on magistracy premises. The cases referred to by Mr. Khosa have no real significance in light of the different charges therein laid. This was a case of “Misconduct in Public Office” and thus more complex sentencing factors fell to be considered.

25. A member of the public who seeks the assistance of a police officer, is entitled to expect professional help and protection, and should be able to rely on the integrity of that officer. Those legitimate expectations were denied to the victim. Further, she was not helped by the security officer in the car park, who adopted the view that “police officers would not do such things”, and merely pointed her towards the police office area in the building from which PW1 had fled. Later, PW1 suffered the ignominy and embarrassment of having to appear as a witness.

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28. The Magistrate when sentencing, would have been well aware of the range of sentences for Indecent Assault and for those various offences which involve the taking of “up-skirt photographs” – such cases are commonly dealt with by Magistrates. An offence of Misconduct in Public Office demands a different perspective and a sentencing range which ensures that perpetrators of such offences are punished in a manner that the public understands and expects. Such sentences should also serve as a warning to others who are tempted to misconduct themselves in a similar fashion.

11. In HKSAR v Sin Kam Wah and anor[2], the first defendant Sin Kam Wah was a Senior Police Superintendant, he was charged with three charges of misconduct in public office for accepting free sexual service provided and arranged by people related to vice business. He was found guilty after trial. His appeal against conviction was dismissed but had the sentenced reduced from the three years’ imprisonment imposed by the trial judge to two years. Although the rank of the first defendant in that case was far higher than that of the defendant in the present case, and the number of charges he faced was more than one, but that case did not involve:-1. Wilful failure to carry out criminal investigation or criminal apprehension. 2. Soliciting advantage from criminal with threat when the criminal should be or was being investigated. 3. Causing the suspect or criminal to leave the territory to obstruct the investigation carried out by other police officers.

12. The defence referred the court to the following cases before sentencing: 1. HKSAR V Fung Hin Wah Edward, CACC 263/2009；2. HKSAR v Cho Wing Nin and ors, CACC 178/2012; 3.HKSAR v Wong Koon Ho Titus, FAMC no 16/2015.

13. The defence submitted that the misconduct involved in the present case was far less serious than that in these cases. In respect of this submission, I take the view that the nature, degree and effect of the misconduct in each case could be very different, and it is difficult to draw comparison. Besides, none of these cases simultaneously involved all three of the aforesaid aggravating factors in this case. And of these three factors, the use of threat by the defendant is obviously absent in the cases the defence referred me to.

14. There is no doubt that the conviction has already brought about serious consequences to the defendant in the present case. But I take the view that none of these consequences were not to be expected by the defendant before he committed the offence; therefore, the weight that could be attached to it is rather limited. The court will nevertheless take them into account in passing sentence.

15. In respect of this, I take the view that if the defendant was not a police officer, he could not have committed the offence in the case. Greater weight should only be attached to the extra bad consequences brought to him by the conviction if the criminal offence was not committed in the course of his performing public duties.

Conclusion

16. In view of the above considerations, I take the view that the appropriate sentence in this case is 20 months’ imprisonment. I sentence the defendant to 20 months’ imprisonment for the offence committed in the case.