R. v. HO CHAK YIN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 724 OF 1995

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J U D G M E N T

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1. The appellant was convicted after a trial of the offences of disorderly conduct contrary to s. 17B(2) of the Public Order Ordinance and assaulting a police officer contrary to s. 63 of the Police Force Ordinance, Cap. 232. He was sentenced to one month and 6 months' concurrent imprisonment respectively on the two charges but consecutive to any other sentence. He now appealed only against the sentence of 6 months' imprisonment.

2. The facts are that the appellant was arrested for disorderly conduct and he was put on the truck escorted by a police officer back to the police station. On the way, he kicked the police officer on the leg causing a minor injury - slight redness and minor bleeding. The officer received treatment afterwards at the hospital.

3. The appellant had a previous record and he was put on a suspended sentence of 9 months for two years. His suspended sentence was activated by another magistrate when he was before him for a wounding charge. Mr. Wong for the appellant submitted that the sentence of 6 months for the assaulting charge was too high since that was the maximum sentence for the offence which should be reserved for the worst kind. In addition, he submitted that the appellant was serving a sentence of 9 months. With 6 months consecutive to his serving term, that would result in a crushing sentence. On the totality principle, it would be excessive.

4. Mr. Wong further submitted that the sentence appropriate for the offence in the present case should be one month imprisonment. He relied on R. v. Fung Chi San, MA 418/94, where the appellant on being stopped by police officers on duty had an altercation with the officers during which an officer was pushed and fell to the ground. Another officer was struck on the face, neck and chest, damaging his spectacles when he went to assist. The appellant was originally fined $5,000 but he was sentenced to 1 month imprisonment when he persisted to proceed with his appeal against sentence. Mr. Wong accepted that for assaulting a police officer a custodial sentence was always called for. However, he submitted, the present case was minor comparing with the case of Fung.

5. Mr. Cheung, for the Crown, accepted that the maximum sentence should be for the worst offence and the present one could not be regarded as one. He asked me to consider whether the sentence of one month for disordering conduct should be made consecutive to the sentence for assault if the 6 months be reduced.

6. The appellant's assault on the police officer in the execution of his duty, though not the worst kind and no serious injury resulted, was nevertheless serious in that the appellant deliberately kicked the officer after which he said "so what". It was not done during any altercation with the police. He was not a person of good character and the present offence was the second of its kind. His case can be distinguished from the case of Fung. The Crown having conceded that 6 months is not appropriate, the sentence should be reduced to reflect the circumstances of the case.

7. The appeal is allowed and the sentence of 6 months is set aside. A term of 4 months is substituted. The sentence is consecutive to the sentence the appellant is now serving. From a totality point of view, the total sentence of 14 months would not create any crushing effect on the appellant.