HKSAR v. Mau Fu Pong

DCCC 542/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 542 OF 2015

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Reasons for Sentence

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Introduction

1.At the commencement of trial, the defendant, a 35-year-old father of a single child, pleaded guilty before me to 2 counts of theft (Charges 1 & 2), but denied 3 other charges, namely, resisting arrest (Charge 3) contrary to section 36(b) of the Offences against the Person Ordinance, dangerous driving (Charge 4), and a GBH 17 offence, contrary to section 17(a) of the Offences against the Person Ordinance.

2.Almost at the close of the prosecution case after a number of witnesses have been called, the parties have struck a deal where the defendant pleaded guilty to charge 3 and the lesser offence of charge 5 (i.e. a GBH 19 offence), while charge 4 was ordered to be left on court’s file.

The facts relevant to sentencing

3.In the small hours on 12^th January 2015, the defendant was seen by a plain clothes officer stealing a pile of newspapers which was left on the pavement for collection by its owner in Hung Hom area; as he was putting the newspapers into his van, the officer went over to intercept him shouting “Police, stop” . Ignoring it, the defendant quickly got into his van and drove off, but the officer managed to jump into the back seat through the still open sliding door of the van.

4.Despite repeated warnings from the officer telling him to pull over, the defendant continued to drive in an erratic zigzag manner at times doing about 70 kmh. The officer had to hang on to something to keep his balance.  

5.When approaching Chatham Road South the defendant said, “Let’s go to hell together”, fearing for his life the officer opened the sliding door intending to jump off the van, the defendant then swerved and braked violently causing the stolen newspapers to fall out onto the road.

6.The officer jumped off and at once went to open the front passenger door, only to find that a woman was sitting in the front passenger seat. He then grabbed hold of the handle above the door with one foot stepping on the front step of the van, the defendant started to move the van in a forward/ backward motion trying to shake off the officer.

7.Again fearing for his life, this time the officer drew his revolver and shouted, “Stop or I’ll shoot”, the defendant suddenly stopped the van and grabbed hold of the muzzle of the gun trying to snatch it, but failed to do so. Then the defendant moved the van forward in a slow but erratic manner with the officer still clinging on to the van.

8.The officer fired his first shot and after the shot, the defendant did stop for a moment but then moved it again suddenly in a manner that caused the officer to fall to the road very close to the side of the van. He landed in a position where his lower body and legs were in the area between the front and rear wheels of the van.

9.The van moved towards the right of the officer (= towards the direction of the officer), the officer then fired a second shot but that did not stop the van and eventually ran over his right leg and fractured it. While lying on the road being unable to stand up, the officer worried that the van might reverse over him, he then fired two more shots. The defendant eventually drove off and disappeared in the distance.

10.Ambulance men nearby subsequently came to his aid and took the injured officer to the hospital for treatment. The injuries the officer sustained include abrasions at the left buttock and right ankle and a fracture of the mid shaft of the right fibula with tenderness and swelling over the right leg.

11.The officer was discharged from the hospital about 9 days later with an air cast on his right leg. He was assessed by the clinical psychologist who said he was stable though having worries and emotions. The officer still feels tremendous pressure due to the incident and continues to have psychological counselling. The fibular fracture is almost completely healed but physiotherapy is still needed.

12.Later that day, police located the van which was parked in a private residential car park in Kowloon. It had a shattered windscreen. Police found bullet holes in the van and some other stolen property on the van (the subject matters of charge 1-a left door of a van, one octopus card (stored value $95) and a pair of speakers (Valued at $800)). The cost of repairing and fitting a new sliding door is $30,000. The value of the stolen newspapers is estimated to be $800.

Mitigation

13.The defendant has amassed 23 previous convictions over the past 18 years; 14 of them are related to dishonesty, some to do with drugs, and one with violence (Common Assault). He was given a suspended sentence- 2 months suspended for 12 months on 3^rd October 2014, for his only conviction of violence but due to the commission of the present offences, he was in breach of it.

14.A number of letters have been submitted to the court pleading leniency on his behalf including the defendant himself, his common law wife and his relatives. In his letter, the defendant expressed extreme remorse for what he had done, apologized for causing the pain to the officer and wished him a speedy recovery.

15.On the court’s request, defence counsel has prepared the mitigation in writing (a 14-page written submission) which helpfully sets out his main points. On top of that, he continued to argue his case orally for more or less an hour in court.

16.The mitigation, as defence counsel put it, boils down to two strongest mitigation, i.e. the defendant’s guilty plea and the fact that he surrendered himself to the authorities.

Guilty Plea

17.It was submitted by defence counsel that by pleading guilty, which showed he was very remorseful for what happened, the defendant should get the maximum discount in all the circumstances. I take it to mean that the court should give the defendant the usual 1/3 discount for a timely plea despite the fact that some of the pleas were entered in the middle of the trial.

18.As far as the plea to GBH 19 (a lesser charge of charge 5) is concerned; I would think that it’s timely because once the prosecution indicated they would accept a lesser charge during trial, the defendant immediately pleaded guilty to it.

19.As for charge 3 (resisting arrest), strictly speaking, the plea cannot be described as timely since the prosecution have not changed their position from beginning to end, but as in the instant case, the same set of facts supporting a GBH 19 offence also go to support the resisting charge, the overall sentence would make no difference. It’s for this reason I would give a 1/3 full discount for each of the charge to which the defendant pleaded guilty.

Turn himself in

20.Defence counsel said that the defendant had escaped but later on, about 9 days later, surrendered himself to Kowloon City Police Station. He could have gone into hiding in the Mainland but he chose to face the music. He should be given extra credit for so doing.

21.On the evidence before the court, the police had already located the van in question, its registered owner (that’s his wife), before his surrender, it was only a matter of time that the police would get hold of him. In fact, the injured officer was able to pick the defendant out from the line-up after his arrest. So this is not the case where the police were totally in the dark as to the identity of the culprit.

22.Having said that, his surrender to the authorities is always something that should be encouraged for the simple reason that it does save the investigation time of the police. And for this reason, the defendant is entitled to a further reduction of sentence.

23.One may argue that by entering not guilty plea following his surrender would have cancelled out any positive effect of the latter, but I do not think this situation arises in the instant case for consideration because of my view of timely plea in respect of the lesser charge (a GBH 19 offence).  

Reasons for sentence

24.In his oral submission, defence counsel emphasized for a number of times what the defendant said under caution “I just stole the newspapers. At that time I aimed at fleeing only I didn’t mean to hit the cop.” Counsel stressed that the defendant did not have the intention to hurt the officer and this was evidenced by the acceptance of the prosecution of a lesser offence of GBH 19.

25.I’m mindful of the fact that I am dealing with a GBH 19 offence, which requires foresight of some harm on the part of the offender. In HKSAR v Estrella, Hazim Angelina (unrep., HCMA 1096/2006), a case of section 19 offence, it’s said that a conviction based upon recklessness requires proof that the defendant saw the risk of injury to the victim and, despite that, went ahead with his action in any event. (See also Archbold Hong Kong 2015, 20-196A)

26.By pleading guilty to a section 19 offence, the defendant at least admitted that he saw the risk of injury to the officer but nevertheless continued on his driving.

27.Indeed there is overwhelming evidence to support such a conclusion. Just looking at the last part of the episode is enough to illustrate the point.

28.When the officer was clinging on to the van, the defendant knew very well that the whole episode could have come to an end peacefully if he had stopped the van; instead of complying with the police order to stop, he chose to move his vehicle in such an erratic manner with only one purpose in mind, that is to shake off the officer so that he could escape.

29.He succeeded in doing so and the officer fell off on the near side of the van. It must be obvious to him that the officer could not have landed anywhere far away from his van, without a doubt to move the van in a situation like this is a very risky business. Worse still, he moved the van towards the direction of the officer (He admitted that the vehicle then continued on towards the right of the officer, see paragraph 7 of the admitted facts), any person including the defendant would have recognized the extreme danger inherent in the conduct. Now the officer’s right leg was run over by the van as a result, his conduct manifested a total disregard for the officer’s life.

30.For the GBH 19 offence, it is undoubtedly one of the most serious cases of its kind; in my view, the facts of the instant case are serious enough to attract the maximum sentence of 3 years. And the same applies to resisting arrest for they both are based on the same set of facts.

31.For the reasons given above, I take the maximum sentences as starting point for charge 3 and lesser charge 5(GBH 19), namely, 2 years for charge 3, 3 years for GBH 19. And for the 2 thefts (charges 1 & 2), I take 9 months as starting point for each of the offence.

32.I reduce the starting point by 1/3 to reflect his pleas, and give a further one month reduction by taking into account of his surrender to the police. The individual sentence for each of the charge is as follows:

Charge 1 – 5 months’ imprisonment;

Charge 2 – 5 months’ imprisonment;

Charge 3 – 15 months’ imprisonment;

Charge 5 (GBH 19) – 23 months’ imprisonment.

33.Taking into account the totality principle, I order that the term of charge 5 should run consecutively to the term of charge 2, and concurrently with charges 1 & 3. The total term is one of 28 months’ imprisonment.

Breach of Suspended Sentence

34.By committing the present offences, the defendant was in breach of the suspended sentence passed on him just slightly over 3 months ago.

35.Last time he was put on suspension for a violent crime, a common assault; this time he went further by committing a much more serious violent crime, a GBH 19 offence. I see no reason not to activate the suspended sentence. The 2 months are therefore activated.

36.Section 109C of the Criminal Procedure Ordinance provides, “Where a court orders that a suspended sentence shall take effect, with or without variation, of the original term, the term of such sentence shall commence on the expiration of another term of imprisonment passed on the offender by that or another court, unless the court is of the opinion that, by reason of special circumstances, the sentence should take effect immediately.” In other words, the terms should be made consecutive to each other in the absence of special circumstances.

37.Defence counsel has been given the opportunity to address the court on this matter, but he did not argue otherwise, and I find no special circumstances either.

38.In the circumstances, I therefore order that the 2 months’ suspended sentence should run consecutively to the total term, the overall term is one of 30 months’ imprisonment. 

Disqualification

39.Section 69 (1) of the Road Traffic Ordinance provides, “……………….a court or magistrate before which a person is convicted of any of the following offences may order him to be disqualified for such period as the court or magistrate thinks fit-”

(a) -……….

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(h) - “any offence during the course of which, or in order to escape apprehension for which, he uses a motor vehicle.”

40.Clearly the facts show that the defendant was driving the van with the officer clinging on to it in such a manner so as to shake him off it, he did it without regard for the officer’s life, and with one thing in mind only, which is to escape apprehension. The road, in my view, would be safer without a driver like the defendant behind the wheel.

41.Again counsel for the defendant has been given the chance to address the court on this matter; he only asked the court to set the period as short as possible.

42.His traffic record shows that the defendant had driven carelessly on 4 previous occasions; he had been disqualified twice in the past and had breached one of the disqualification orders. There are a few speeding offences as well.

43.Taking everything into account, I order that the defendant be disqualified for a period of 5 years. He is disqualified from holding or obtaining any driving licence or from driving any vehicle during the disqualification period.