HKSAR v. RASHID KHAN

HCCC 354/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 354 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: I do not propose to keep you in suspense. You are going to prison for 12 months.

No one can reach a properly informed opinion about the appropriate sentence in your case without having looked at the CCTV footage of your encounter with Mr Wu. It shows quite a violent struggle between the two of you by some steps for no more than a few seconds as he attempted to apprehend you, and you then pushing him away from you as you tried to get away from him. This was not a case of you striking Mr Wu or trying to land a blow on him, and your conduct was therefore very different from the sort of conduct which usually leads to someone facing a charge of manslaughter.

Moreover, the footage shows that this was not a particularly hard push, and so I propose to sentence you on the basis that it was no harder than it needed to be to get him to let go of you.

Having said all that, what made what you did unlawful was that Mr Wu was entitled to apprehend you and you pushed him away to prevent your apprehension. That would have amounted to an offence under section 36 of the Offences Against the Person Ordinance for which the maximum punishment is 2 years’ imprisonment. The actual punishment would have been very much less than that. But a short sentence of immediate imprisonment is often regarded as necessary for an offence of that kind. That is because frontline officers are entitled to look to the courts for their protection and are entitled to expect courts to hand down sentences of sufficient severity to deter people from resisting their apprehension.

I accept, of course, as does the prosecution, that you did not intend to harm Mr Wu, let alone to push him in such a way as to put his life in danger. No one could have foreseen that what you did might lead to his death, and I take that into account in your favour. But the law sometimes requires people to be punished even for the unintended consequences of their actions. The more serious the consequences of what someone has done, the greater the punishment will be, however unintended the consequences may have been. The rationale for that is that it is always possible that if you do something unlawful, unintended consequences may occur.

I have taken into account in your favour that you gave yourself up when you heard that Mr Wu had died, and that the police were looking for the hawker he had been trying to apprehend. I have also taken into account in your favour your plea of guilty, even though it was only very recently that you notified the court of your intention to plead guilty. I have also taken into account in your favour the fact that you are a family man with no previous convictions, and that there are people who speak highly of you.

Having said that, you accept that you occasionally worked as a hawker before this happened, presumably on a street and without a licence, and that on its own would have amounted to a criminal offence punishable by imprisonment. I do not of course treat that as an aggravating factor, but it affects the extent to which I can properly treat you as having led a completely blameless life.

There are very few comparable cases which might have given me some guidance about the appropriate sentence in your case. Almost all cases of manslaughter which arise when someone unexpectedly dies following a relatively trivial incident involve at least a blow, and very often much than one, certainly something much more violent than a single push. In your case it can truly be said that the consequences of what you did far outstrip such violence as you intended, and that this was right at the low end of the scale in terms of seriousness when compared with other cases of manslaughter.

Having said that, manslaughter is not an offence for which the law allows a suspended sentence of imprisonment to be passed. If a prison sentence is called for, it must be one of immediate effect. In my opinion, a prison sentence, albeit a relatively modest one, is called for in your case, if only because it was a frontline officer trying to enforce the law who died. Taking everything into account and balancing the level of your culpability against the enormity of the consequences of your actions, I have concluded that you should go to prison for 12 months. That is the sentence which I pass.