HKSAR v. TSAI KING HUNG AND OTHERS

DCCC 456/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 456 OF 2016

---------------------

---------------------

--------------------------------------

REASONS FOR SENTENCE

--------------------------------------

INTRODUCTION

1.  There are 4 defendants in this case, namely D1 to D4.  All of them pleaded guilty to one charge of assault occasioning actual bodily harm (AOABH), contrary to Common Law and punishable under s 39 of the Offences against the Person Ordinance, Cap 212 (Charge 1).  Besides, D1 and D2 also pleaded guilty to one charge of wilfully obstructing a police officer in the due execution of his duty, contrary to s 36(b) of the Offences against the Person Ordinance (Charge 2).

2.  The victim of both charges was the same and he was a police officer acting as a decoy for an anti-vice operation inside a building on Lockhart Road.  On the day of the incident, he went to an apartment in that building and was let in by a prostitute (WP) who was suspected to be a two-way permit holder.  Whilst WP was undressing herself, the victim produced his police warrant card and demanded the former to show her proof of identity. WP then became emotional and she struggled with the victim.  During the process the victim dropped his warrant card onto the floor and WP managed to go out of the flat. 

3.  The struggle between WP and the victim continued outside the apartment.  At this juncture, D1 arrived and stopped the victim from holding onto WP.  D2 arrived some 20 seconds later.  The victim declared to the two of them that he was a police officer executing his duty.  However, he was unable to show them his police warrant card which was still inside the apartment.  D2 was the one who first attacked the victim by hitting his head by hand.  The two of them then repeatedly hit and punched the victim.  D2 also kicked the victim forcefully.  Meanwhile, WP ran back to her apartment.  A short while later, D3 and D4 also arrived.  The victim declared again that he was a police officer but to no avail.  The 4 defendants surrounded and assaulted him, during which his face was roughly pressed against a wall and his head was punched.  Then D1 to D3 continued to hit him with their fists whilst D4 held onto him.   Despite that the victim was hit to the ground, all four defendants still violently kicked his body and his head.  At one point, D3 picked up a (plastic) rubbish bin to hit the victim.  Eventually, the victim passed out. Yet, D1 still hit the victim’ head forcefully whilst the latter was lying on the floor.  The whole episode of the attack lasted about one minute. 

4.  Whilst the victim was still unconscious, D1 slapped the victim several times and D2 poured a bottle of liquid onto the victim’s face.  At this juncture, D4 left.   D1 and D3 tried and dragged the motionless the victim away but in the process of which the victim’s body fell onto the floor.  At this point, D1 kicked the victim’s head twice.  Then, D1 and D2 dragged the victim to the rear staircase. 

5.  When the victim regained consciousness, he was surrounded by D1 to D3 and his bag and police warrant card were placed next to him.  When PW2 (the victim’s colleague) arrived, the victim pointed out his assailants.  D1 and D2 were arrested there and then.  Yet, D3 managed to flee. Afterwards, D3 and D4 were arrested separately and they were identified by the victim in an identification parade.

THE VICTIM’S INJURY

6.  The victim’s injuries were summarised at paragraph 14 of the Summary of Facts, to which all the defendants agreed. After the incident, the victim was immediately conveyed to the hospital where it was found that he had swellings near his eyes and on the nasal bridge. There was abrasion on his upper lip and laceration on the outside of his right ear.  There was also erythema on both sides of his neck, forearms and abdominal wall.  The victim was discharged from hospital after two days and was granted sick leave for about a month. 

7.  I have seen the photos taken on the day of the incident showing the victim’s injuries.  I was told by Mr Omar, counsel on fiat, that the injuries did not leave the victim with any long term adverse effects. 

THE CCTV FOOTAGE

8.  The whole episode of the attack was captured by the CCTV cameras installed there.  I have watched it carefully in court with counsel and subsequently in chambers.  I find that the description of the incident given in the Summary of Facts fairly reflects what had happened.  I note also that the victim is seen to have exercised considerable restraint when he was being pushed by and struggled with WP.  Also, during the time when the victim was attacked first by D1 and D2 and subsequently also by D3 and D4, he never hit back.  

ANTECEDENTS AND MITIGATION

D1

9.  He is aged 22 and was 21 at the time of the offence.  He is single and is living with his family.  He has received education up to but has not completed F5.  He is said to be a construction site worker. He had 3 court appearances before involving a total of 5 convictions: 3 of which were AOABH, one was fighting in a public place and the other one was claiming to be a member of a triad society. 

10.  Mr Shah, counsel for D1, frankly admitted on behalf of his client that D1 was employed as a bouncer there for a reward of $1,000 a day and that there was the reason why he was at the scene at the material time.  Mr Shah said that D1, seeing the struggle between WP and the victim, mistook the latter as a patron causing problems and did not believe the claim that he was a police officer.  Mr Shah submitted that D1 had acted recklessly in disbelieving the victim, that the attacked lasted only for a short duration and that the slapping of the victim’s face by D1 was an attempt to wake up the victim.  I have to point out, however, that this is not quite what I have seen from the footage.  As to my query why D1 after the last slapping still kicked the victim’s head twice when the latter was unconscious, Mr Shah had no answer. From what I have seen from the footage, D1 had brutally hit the victim several times even when the victim was unconscious. 

11.  Mr Shah drew my attention to HKSAR v Qaiser, Faisal (HCMA 637/2013) in which the appellant, who was convicted after trial for AOABH, had his detention centre order quashed on appeal and substituted by a suspended sentence.   The case was about an attack on a youth by a rival triad group in which the appellant played a relatively minor role.  The main reason why the sentence appeal was allowed was the appellant’s health problem which made him unsuitable for the regime in the Detention Centre.  Mr Shah used that case to support his submission that a detention centre order would be appropriate for this type of offence. 

12.  With respect, whilst I do not doubt that in a suitable factual scenario a Detention Centre Order may be a viable sentencing option for AOABH, I am unable to accept that Detention Centre Order is the appropriate sentence here.  First, the nature of the present case and D1’s role in it are in my view far too serious for such a sentencing option.  Secondly, in my view sufficient chance has already been given to D1.  He has already accumulated 3 previous convictions of AOABH and also another conviction involving the use of violence, even though he has not been sent to prison before.  His criminal records show that he had not valued the opportunities given to him before and that he is prone to use violence. 

D2

13.  He is now aged 48 and was 47 at the time.  He has a previous conviction of possession of a dangerous drug back in 1990 for which he was fined $600.  For present purpose, I will treat him as if he had a clear record.

14.  Ms Lai has diligently prepared a bundle for mitigation, the contents of which (including the enclosures) I have duly noted.  In brief, the mitigating factors put forward on behalf of D2 can be summarised as follows:-

(a) the timely plea;

(b) the fact that the present offence was committed out of D2’s character and he is unlikely to re-offend;

(c) Besides being a family man, D2 is also a hardworking self-made person running his own lucrative business making neon light signs; and

(d) D2’s family circumstances. His mother (now aged 76) is paralysed from a stroke and his elder sister is diagnosed with brain atrophy, both of them require D2 and his wife to take care of. Besides being responsible for family living expenses, he also needs to shoulder the education expenses of his two daughters who are studying at universities in the United Kingdom. Despite his heavy financial burden, he makes regular donations to Medecins Sans Frontieres.

15.  Regarding the cause of the offence, Ms Lai said that D2 at the material had just finished his job in the building when he heard shouting and screaming.  He saw the struggle between WP and the victim.  He had heard from his customers that there had been robberies in that area. Therefore, he together with another male (D1) hit the victim, mistakenly thinking that the latter was doing something bad.  Although he heard the victim declaring himself to be a police officer, he disbelieved him as no warrant card was produced.  

16.  Ms Lai provided the court with several magistracy sentence appeals on AOABH which are summarised at paragraph 11 of her very helpful written submission.  I have read all of them with care.  In brief, the import of those cases is that community service order can be a viable sentencing option for the offence of AOABH.  With respect, I do not have any problem with that proposition.  However, a community service order (“CSO”) is very much an individualised sentence which depends to a large extent on the facts of each case and the personal circumstances of each defendant. Furthermore, it is well established that even if all the six factors referred to in R v Brown (1981) 3 Cr App R(S) 294 are present, a judge should not slavishly make such an order; the gravity of the offence must be carefully considered: see HKSAR v Wan Ka Kit [2006] 2 HKLRD 9.  I note further that none of the cases referred to by Ms Lai bear any factual resemblance to the present one and none of them are about an assault on a police officer duly executing his duty. 

17.  I note that although D1 was the first to arrive and he stopped the victim from holding onto to WP, it was D2 who started the assault on the victim and afterwards the other defendants also joined in.  D2 was also the first one who kicked the victim during the assault. 

18.  In my view, the nature of the present offences, the number of assailants and the involvement of D2 in the attack taken together give rise to a culpability too serious for a CSO to be imposed or even considered.  Therefore, I decline Ms Lai’s request to call for a CSO report. 

D3

19.  D3 is aged 22 now and was aged 21 at the time of the offence.  He received education up to Form 3.  He is single.  He had 3 court appearances before involving 3 convictions including theft, robbery and conspiracy to burglary, for the last offence he was sentenced to 21 months’ imprisonment. 

20.  Mr Kwong, D3’s solicitor, told me that D3’s parents have divorced and D3 lives with his mother and younger brother.  D3 was a part time waiter earning $7,000 to $8,000 a month.  Mr Kwong stressed the timely plea and remorse of D3.  Mr Kwong said that D3 had acted impulsively at the time without thinking much.  Although D3 had used a rubbish bin to hit the victim, that rubbish bin was a plastic one.  There are mitigation letters from D3, his mother and his employer, the contents of which I have duly noted.  

21.  Mr Kwong asked that a suspended sentence be imposed on D3.  As to this, I note that a sentencing court should not consider to impose a suspended sentence before determining that a custodial sentence is called for: see Secretary for Justice v Ip Hon Ming & Anor [2015] 1 HKC 143.  I note also that, except in respect of certain offences, the test for a court in deciding whether or not to suspend the sentence of imprisonment is not one of “exceptional circumstances”: see Secretary for Justice v Wade, Ian Francis (CAAR 1/2015). 

22.  Similar to what I have said in relation to the case of D1 and D2, in view of the nature of the offence, the number of assailants involved, D3’s criminal records and the mitigating factors put forward on his behalf, in my view an immediate custodial sentence is called for and a suspended sentence is simply not realistic.  

D4

23.  He is aged 29.  He received education up to Form 3.  He is single and lives with his parents.  He had one court appearance before involving 3 convictions for traffic offences for which he was fined. For present purpose, I will not take his previous convictions into account.

24.  According to his counsel, Mr Woon, D4 worked as a clerk in a finance company earning a monthly salary of $12,000 at the time of the offence and is now an assistant manager of a Japanese restaurant making about $15,000 a month.  D4’s father is now aged 58, suffering from a heart condition and a mental disease.  His mother is aged 50.  He also has a grandmother.

25.  Regarding the offence, Mr Woon said D4 came to the building to seek sexual service at the time.  Although D4 heard the victim declaring that he was a police officer, he did not believe him. 

26.  Mr Woon submitted 2 mitigation letters, one from D4’s present employer and the other from a pet shop owner who had been helped by D4, both of them speak highly of D4 as a person who is eager to help others.  Mr Woon also submitted a certificate showing that D4 took part in a voluntary work after his arrest.  Mr Woon realistically accepted that a prison sentence is likely but urged that it be as lenient as possible, given the fact that D4’s involvement in the attack was small and that he has pleaded guilty.   

CONSIDERATION

27.  In view of the peculiar facts of this case and what I have seen in the CCTV footage, I am prepared to accept that the defendants assaulted the victim because they thought that he was bullying a sex worker.  I would further accept that although all the defendants had heard the victim declaring his police identity, they recklessly did not believe him because he was unable to produce his police warrant card.  

CHARGE 1

28.  The maximum sentence for AOABH is 3 years imprisonment.  There is no tariff for this offence and sentence depends on the facts of each case and the individual circumstances of each defendant.  

29.  In the present case, although it is fortunate that the assault does not result in any long term adverse effect on the victim, he had been hit to the ground and passed out.  He was admitted to hospital for two days and was given sick after discharge for almost a month.  The fact that he had not been injured more seriously is by providence rather than by design.  

30.  In my view, the present offence is very serious not only because the victim was in fact a police officer duly executing his duty, but also because it was a four-against-one situation where excessive force was used by the defendants in a brutal and merciless manner.  In particular, I note that before D3 and D4 arrived, the victim had already been punched and kicked by D1 and D2.  He tried to leave but failed and was unable to defend himself.  After D3 and D4 had also come, the victim was surrounded by the four of them.  If the original intention of the defendants were to help a lone woman who they believed was being bullied and to prevent the victim from leaving, at that point of time their aim would have already been achieved. There was no longer any necessity to use any violence, as the victim had already been overpowered.  However, none of the defendants paid any heed to the victim’s claim that he was a police officer or cared to find out the truth and all of them recklessly assumed that he was impersonating.  As a result, the victim was subject to further violence.  His face was roughly pressed against the wall and his head was punched.  In addition to using their fists, all of the defendants had also kicked the victim even though he had already been hit onto the floor.  In particular, D3 also used a rubbish bin to hit the victim in those circumstances which was wholly unnecessary. 

31.  Seeing that the victim did not come round after D2 had poured a bottle of liquid on him, D4 just left without doing anything. Although D3 was seen to have made a telephone call, he was not calling the police or for help.  In fact, none of the defendants remaining there had reported the matter or to call for an ambulance.  Instead, D1 to D3 tried clumsily to remove the heavy body of the victim from the corridor to the rear staircase by dragging, causing to him to fall once on the way.  It was at this point that D1 is seen to have hit the victim again heavily, apparently to vent his anger. D3 escaped when PW2 arrived. 

32.  Taking everything into account, in my view the appropriate starting point for Charge 1 for D1 and D2 who were involved in the attack from beginning to end is one of 15 months’ imprisonment, which is reduced to 10 months’ imprisonment for their plea.  

33.  In the case of D1, apart from his plea, I can see no other reasons to further reduce his sentence.  Therefore, he is sentenced to 10 months’ imprisonment for this charge.

34.  As regards D2, unlike D1, he does not have any previous for use of violence, I am prepared to accept that he had acted out of character in this incident.  Also, in view of his mitigating factors including the fact that he had managed to stay away from trouble for more than 25 years, established an apparently successful business, raised a family and took care of his love ones, perhaps over-generously I grant him an additional discount of 2 months.  Therefore, he is sentenced to 8 months’ imprisonment for this charge.

35.  For D3 and D4 who joined in the attack a short while after it had started, I adopt a starting point of 13.5 months’ imprisonment which is reduced to 9 months’ imprisonment for their plea.  

36.  In the case of D3, apart from his plea, I can see no other reasons to further reduce his sentence.  Therefore, he is sentenced to 9 months’ imprisonment for this charge.

37.  As regards D4, in view of the mitigation put forward on his behalf including his family circumstances and his positive good character, I exercise my discretion to grant him an additional discount of 1 month.  Therefore, he is sentenced to 8 months’ imprisonment for this charge.

CHARGE 2

38.  The maximum sentence for this offence is 2 years imprisonment.  Similarly, there is no sentencing tariff.   However, there are clear case authorities that police officers in due execution of their duty are entitled to have the protection of the court.  An obstruction is particularly serious when it involved the use of violence against police officers causing injuries to the latter: see Secretary for Justice v Ko Wai Kit [2001] 3 HKLRD 751; HKSAR v Chiu Kwok Wai [2008] 1 HKLRD 284; and HKSAR v Ko Long Tsai [2007] HKCLRT 394.  

39.  Whilst I accept that D1 and D2 had recklessly not believed that the victim was a police officer, objectively speaking what they did had actually caused obstruction as a result of which WP managed to escape.  I adopt 6 months’ imprisonment as the starting point of Charge 2 and reduce it to 4 months’ imprisonment for the plea of D1 and D2.  

40.  For D1, apart from his plea, I can see no other reasons to further reduce his sentence.  Therefore, he is sentenced to 4 months’ imprisonment for this charge.

41.  For D2, as discussed above, I give him an additional discount of 1 month for the mitigating factors put forward on his behalf.  Therefore, he is sentenced to 3 months’ imprisonment for this charge.

42.  Having taking into account the totality principle, the fact that Charge 1 and Charge 2 were so factually intertwined that they can be described as one offence and the peculiar feature of this case that D1 and D2 believed that they were helping a sex worker who was being bullied and did not know that the victim was in fact a police officer, in my view justice is best served by ordering the sentences of these two charges to run concurrently and I so order. 

CONCLUSION

43.  D1 is sentenced to 10 months’ imprisonment for Charge 1 and a concurrent sentence of 4 months’ imprisonment for Charge 2.  The overall sentence is 10 months’ imprisonment.

44.  D2 is sentenced to 8 months’ imprisonment for Charge 1 and a concurrent sentence of 3 months’ imprisonment for Charge 2.  The overall sentence is 8 months’ imprisonment.

45.  D3 is sentenced to 9 months’ imprisonment for Charge 1.

46.  D4 is sentenced to 8 months’ imprisonment for Charge 1.