HKSAR v. CHAN WAI KWOK

HCMA 569/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 569 OF 2004

(ON APPEAL FROM FLCC 201/2004)

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R E A S O N S  F O R  J U D G M E N T

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1.  The Appellant was convicted, after trial, of one count of Common Assault, contrary to common law and section 40 of the Offences against the Person Ordinance, Cap. 212.  He was sentenced to 14 days’ imprisonment.  He appealed against that sentence.

Facts

2.  The prosecution case was that the Appellant drove a container lorry to the Customs & Excise Examination Platform at Lok Ma Chau and parked it incorrectly.  Rather than parking his vehicle perpendicular to the platform in one of the designated parking spaces indicated, the Appellant parked his vehicle horizontally to the platform and thus took up two or three vehicle parking spaces. 

3.  The Appellant alighted and left the incorrectly parked vehicle while he went to the platform, where the Customs & Excise office was, to complete his documentation in preparation for an inspection of his container.  When he arrived at the Customs & Excise office, a Customs Officer, the victim Tsoi Wai, told him to park his vehicle properly in a designated space.  The Appellant left immediately using foul language.

4.  The officer followed to give instructions about the parking of the vehicle.  The Appellant was very emotional and continued to address the victim in foul language, then slapped the victim’s face.  Two other Customs Officers, PW2 and PW3, immediately assisted and grabbed hold of the Appellant.

5.  The Appellant’s counsel contended that a sentence of 14 days was too severe and that the Magistrate failed to take into account he was sentencing a first offender.  Further, he was sentenced without the Magistrate seeking reports, which, it was submitted, was unfair particularly when the Appellant had a good employment record.  It was further submitted that the immediate custodial sentence could be substituted by a fine. 

6.  The mitigating factors set out by the defence counsel at trial were the Appellant’s age, that he was married with children; was a driver by occupation; had a clear record; there was only one slap on the victim’s face; no weapon was used, the officer had no injury; the attack was not pre-meditated; it was a single fall from grace; was out of character and the assault was not the worst of its kind.

7.  The Magistrate noted that the slap on the face was not an assault of the worst kind.  She considered, rightly, that the offence was aggravated by its being committed on a Customs Officer.  The officer was on duty and was within his rights in asking the Appellant to park his vehicle properly.  There was no other provoking incident to justify the assault.  It is clear from a number of cases that officers of the law, or persons who are carrying out public duties, often unpleasant ones, must be protected from assault by citizens simply because they are carrying out their duties.  Deterrent sentences in all but exceptional cases are imposed for this type of offence.

8.  The Magistrate was aware of the authorities which confirmed an immediate custodial sentence is warranted and aware too of the need for deterrence as a major element in sentencing for this type of offence.

9.  In HKSAR v Chan Hung Yau, HCMA 183 of 2002, Lugar-Mawson J said:

“There is certainly no doubt that assaults on police officers are serious and are ones that should always attract custodial sentences, save in exceptional circumstances.”

10.  In R v Hui Man Lee, CA 399 of 1993, Penlington, JA stated:

[He] “would reiterate again that anybody who attacks a public officer who is simply carrying out his duties, a task which is often unpleasant, can expect no sympathy from the courts.”

11.  In R v So Kan Ming, MA 201/1996, the Appellant kicked the buttock of a police officer causing him to fall and injure himself.  The judge on appeal substituted the two months’ sentence of imprisonment with a fine of $5,000.  That was a more serious assault, but the judge made it clear that he considered special circumstances justified that course.

12.  In HKSAR v Yeung Wan Hon, MA 323 of 2000 the offence charged was common assault and involved throwing coins at a traffic warden.  This Appellant’s abuse and slapping the Customs Officer’s face was more serious.

13.  The Appellant’s counsel referred to HKSAR v Ogawa Shuich, MA No. 174 of 1999.  In that case, a drunken Japanese tourist who had grabbed the neck of a police officer, was convicted of assaulting a police officer in the execution of his duty.

14.  He was sentenced to 21 days imprisonment and on appeal, the sentence was reduced to a Community Service Order of 80 hours on the basis that the Magistrate had treated the assault as more serious that it was amounting to little more than a drunken grab of the neck.

15.  In the instant case, the Customs Officer who was on duty, was slapped on the face and subjected to abusive language simply because he asked the Appellant to conform to the mode of behaviour expected of people approaching the Customs & Excise office.

16.  Counsel for the Respondent suggested that although there was no injury, there is an element of humiliation to a slap on the face that is not present in other forms of assault.

17.  As for the second ground, in  HKSAR v Thapa Magdalena, MA 1131 of 1999, comment was made as to the desirability of Magistrates or judges seeking reports on first offenders.  Although that course can be recommended, a Magistrate was not obliged to obtain reports and in cases, such as this, where deterrent sentences are required, obtaining a report may be a waste of the reporting officer’s time.  Thapa was a theft case and different sentencing considerations apply. 

18.  I am satisfied the Magistrate took the relevant authorities into account and that she pegged the sentence correctly by imposing 14 days’ imprisonment.

19.  The courts view this type of offence seriously and deterrent sentences were required.  The Magistrate imposed an appropriate deterrent.  The sentence is not wrong in principle nor excessive in length. 

20.  The appeal against sentence is dismissed.