HKSAR v. KWOK NGAI MAN, EDMUND

(Consolidated)
DCCC256 & 426/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS. 256 and 426 OF 2010

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Reasons for Sentence

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1.  D1 and D2 are jointly charged with 1 offence of "Wounding with intent" (Charge 1) and 1 offence of "Criminal Damage" (Charge 2). D1 also faces 1 charge of "Resisting a police officer in execution of duty", contrary to section 63 of the Police Force Ordinance (Charge 3). D1 and D2 pleaded NOT guilty to Charges 1 and 2. On the other hand, D1 pleaded guilty to Charge 3. In respect of Charges 1 and 2, the Prosecution offered no evidence against D1 and D2. Mr. SIU explained that the victim, who is the sole witness for both charges, claims to have forgotten everything and is unwilling to testify.

Summary of Facts (Charge 3)

2.  About 12:30 pm on 26 January 2010, PC 58963 and WPC 7794 stopped 2 males (one of them was D1) near Lung Kong Road, Kowloon City for enquiry.  The officers soon discovered that D1 was connected with a case and intended to make further enquiries.  D1 suddenly turned and ran away.  Both officers gave chase and caught up with him.

3.  D1 struggled with the 2 officers and was subdued eventually.  During the struggle, PC 58963 sustained the following injuries:

(i) tenderness at right little finger and right knee;

(ii) redness at right little finger and right knee; and

(iii) abrasion at left knee.

Mitigation & Sentence

4.  D1 is now 37.  He has 4 conviction records including "Burglary" and "Robbery".  He was sentenced to a total of 12 years imprisonment in August 1996 and was released in April 2004.  D1 resides with his girlfriend, who is now 2 months pregnant. There is a letter from his employer confirming that there is a job for him.

5.  Ms. Moosdeen highlighted that except for 1 minor "Gambling" conviction in July 2004, D1 has remained trouble-free for 6 years after his release from prison.  Also, despite his multiple criminal records, D1 has no convictions similar to Charge 3.  Ms. Moosdeen submitted that owing to his previous experience, D1 has developed a phobia of police officers.  Regarding Charge 3, when D1 was stopped by the Police, he did not know for what they wanted him; he was in fear so he panicked and struggled.  Fortunately, the struggle was a brief one and the officer suffered very minor injuries.  Ms. Moosdeen stressed that D1 is not charged with "assaulting" but merely "resisting" a police officer.

6.  Something does not smell right in this case, especially when the victim in Charges 1 and 2 became a forgetful unwilling witness all of a sudden.  I also have grave doubts about D1's alleged phobia of police officers.  Regrettably, my hands are tied.  I can and should sentence D1 on the basis of Charge 3 only.

7.  Based on the facts revealed, I accept that D1 was struggling to free himself rather than intentionally attacking the police officer, which is a marked difference for the purpose of sentencing.  I agree with Ms. Moosdeen that in the present circumstances, an immediate custodial sentence may not be required.  I note that according to the court's record, D1 was remanded in custody from 26 January to 26 March 2010.

8.  In my view, a suspended sentence would serve as an effective reminder for D1 to behave himself within a specified period of time.  I adopt a starting point of 6 weeks imprisonment. One-third discount is given for the guilty plea, reducing the sentence to 4 weeks.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence for Charge 3 is 4 weeks imprisonment.  I will, however, suspend it for 18 months.  Finally, I will also impose a fine in the sum of $1,000.

[Meaning of suspended sentence explained to D1; D1 understood.]