HKSAR v. Han Shuo Humphrey
Read the full judgment text of HCMA 134/2020 on BabelCite. This High Court CFI judgment was delivered on 14 December 2020.
1. The appellant was charged with a charge under the Summary Offences Ordinance [1] of Possession of offensive weapon with intent to use it for unlawful purpose. He pleaded guilty and was sentenced by the Magistrate [2] to an imprisonment term of 4 months. He appeals against the sentence.
Cited by 7 cases · Cites 9 cases
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HCMA 134/2020 [2020] HKCFI 3095 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 134 OF 2020 (ON APPEAL FROM WKCC 1501 OF 2020) _______________
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___________________________________ REASONS FOR JUDGMENT ___________________________________ 1.The appellant was charged with a charge under the Summary Offences Ordinance[1] of Possession of offensive weapon with intent to use it for unlawful purpose. He pleaded guilty and was sentenced by the Magistrate[2] to an imprisonment term of 4 months. He appeals against the sentence. 2.The hearing below was conducted in Chinese. Upon the request of the appellant, and with the consent of the respondent, this hearing was conducted in English. 3.At the hearing, having heard the Counsel, I dismissed the appeal. These are the reasons for my decision. FACTS OF THE CASE 4.In the morning of the day of offence, the appellant was walking on a street holding an axe and a can of beer. He was seen having used the axe to knock on the street railing when he was walking along the road. Police was alerted and arrested the appellant. At that time, he was holding a can of beer in his hand with an axe leaning on the railing beside him. 5.Under caution, the appellant admitted that the axe belonged to him and he intended to use it for self-defence as there had been just an incident during which he was confronted by mobs when he was clearing road obstacles (the original Chinese: “我係落嚟買煙食嘅… 之前幫忙清過路障，依家因為驚畀啲暴徒打我，所以我先帶依把斧頭用嚟自衛嘅。”). He remained silent in a subsequent interview. BACKGROUND OF THE APPELLANT AND MITIGATION ADVANCED BEFORE THE MAGISTRATE[3] 6.Counsel for the appellant before the Magistrate[4] informed the Magistrate of the background of the appellant, the main points were:
7.As regards the circumstances leading to the incident, the following main points were said:
8.The followings were the main points of mitigation put forward on his behalf:
9.Mitigation letters from two Justices of Peace were submitted, both speak well of the appellant. THE MAGISTRATE’S REASONS FOR SENTENCE 10.The Magistrate said he had taken into account the following matters[6]:
11.Having considered some authorities, the Magistrate considered that immediate imprisonment was the only appropriate sentence and that suspended sentence which was urged upon him was not appropriate. 12.He adopted a starting point of 7 ½ months, gave the appellant a 1/3 discount for his guilty plea, and gave him a further discount of 1 month for his excellent background as the Magistrate described and his clear record. Thus an immediate imprisonment term of 4 months was imposed.[7] GROUNDS OF APPEAL 13.On appeal, the appellant was represented by Mr Clive Grossman, SC and Mr Warren Louis Tang[8]. The following grounds of appeal were advanced:
DISCUSSION 14.There is no tariff for this offence which is a summary only offence. The maximum sentence is a fine of $5,000 and imprisonment for two years.[10] Not only that the maximum sentence is lower than the offence relating to offensive weapon under the Public Order Ordinance[11], the court has more flexibility in sentencing. Ground 1 15.The focus of this ground was the last sentence in the certified English translation of the following passage in the Magistrate’s Reasons for Sentence:
16.Mr Grossman criticized that it was an ill‑considered finding in particular as the appellant was not threatening anyone, he was simply concerned that he might be attacked or molested and therefore was fearful given that violence had sometimes been displayed by demonstrators especially against those seen or thought to be assisting the authorities. The axe was possessed as a threat to keep away any evil-minded person. The suggestion that the appellant might have used the axe beyond self-defence in the circumstances or for other illegal purpose, or that it might have been seized by other people and used illegally, is far-fetched and beyond the scope of the offence charged. Mr Grossman also pointed out that there was no evidence, nor was it the prosecution case, that there was anyone at the scene when the appellant was found in possession of the axe. He also stressed that when found, the axe was only leaning against the railing on the pavement about one meter away from the appellant and the appellant had been penalised unjustifiably for the risk the axe would be used by others. 17.As mentioned earlier, there was dispute as to what the Magistrate had actually said. 18.According to the transcript of the hearing, the Magistrate said:
19.In the Reasons for Sentence, what the Magistrate stated in the Chinese original is:
20.The expressions of the Magistrate on both occasions are subject to different interpretations. Whilst the Magistrate might only have meant that there was a risk that the appellant would use the axe if he was to be attacked, the expression can lead one to think as Mr Grossman suggested. 21.In any case, counsel for the respondent, Mr Raymond Cheng, SADPP,[15] submitted that even if what the Magistrate had in mind was as Mr Grossman suggested, that the weapon might be taken away and used by others, it was a matter which the Magistrate was entitled to take into account. 22.Mr Cheng relied on HKSAR v Chan Yiu Shing[16] in support of this submission. In that case I did say “… the risk that some could have fallen in the hands of other people for illegal use could not be ignored either.”[17] However, this remark must be read in context of the case. The offence which the appellant in the present case was charged with is possession of an offensive weapon with intent to use it for unlawful purpose. Culpability of the appellant is to be gauged by reference to his state of mind and the other relevant circumstances pertaining to him. In Chan Yiu Shing case, the risk I had in mind was that the chilli spray might be willingly passed to others for illegal use. It does not in ordinary circumstances cover the situation where the weapon falls into the wrong hands against the wish of the person who is in possession of it. In any case, whether this factor can be taken into account depends on whether the evidence supports such inference. In Chan Yiu Shing case, the appellant wearing an armour-like black hard plastic protective gear had five bottles of chilli spray as he was proceeding to a place where he knew sensitive social event was taking place. At the present case, the appellant was only in possession of one weapon and there was no sufficient evidence, if any at all, to support an inference that it would be passed to others for unlawful use. 23.I have therefore considered the present case on the basis that culpability of the appellant is to be gauged by reference to his state of mind and the other relevant circumstances pertaining to him. 24.In this regard, Mr Cheng supported the assessment of the Magistrate that the risk that the appellant would use the axe was high, despite the axe was not held in the hand of the appellant when eventually found. He drew the attention of the court to the following matters:
25.I agreed that all these were matters which the Magistrate was entitled to take into account in sentencing. 26.Mr Grossman argued that the assessment of risk of the Magistrate was erroneous and submitted that in the circumstances of the case the risk would have been low. He stressed that the incident took place in the morning which was not at a time when disturbance usually happened and indeed nothing unpleasant had occurred during the time the appellant was in possession of the axe. 27.It is true that nothing untoward had actually happened but what the Magistrate had to do was to assess the risk involved. The risk that there would have been confrontation could not be lightly discarded as it did happen just a while ago. It was a fair finding of the Magistrate that the appellant was ready to use the axe as and when he felt necessary to do so, such situation would arise when the appellant was confronted again as before. I did not think the assessment of the Magistrate was flawed. 28.This ground was not decisive on the appeal as the duty of the court was to consider at the end whether the ultimate sentence imposed was proper and correct. Ground 2 29.Mr Grossman criticized the Magistrate for wrongly distinguished the case of Chan So Ching[18] where the appellant was sentenced to a suspended sentence for possession of a fruit knife 12 inches long. It was his submission that many aggravating features in that case did not exist in the present. He stressed that in the present case there was no concealment, no premeditation, no unwarranted threat and harassment, and no public officer was threatened. 30.The appellant in Chan So Ching case was charged with the same offence. She pointed a 12-inch fruit knife wrapped in newspaper at a staff of the Lands Department subjecting him to unwarranted threat and harassment and the court considered that such behavior should be deterred. At the same time, the court recognized that she had been deceived and committed the offence on impulse. 31.The reason why no tariff is set for this type of offence is that each case must be decided on its own facts and context. There are marked difference in the facts and context between the present case and Chan So Ching case. Despite I said in that case that “a suspended sentence is adequate”[19] the judgment must be read in full and in context. The appellant in that case was sentenced by the magistrate to a suspended sentence plus a fine. There was no application by the Secretary for Justice for review of sentence. There was an appeal against sentence and one of the grounds was that it was too severe a punishment to impose a suspended sentence and it was argued that a fine would be sufficient.[20] I held that a fine would not adequately reflect the nature and the seriousness of the case. I further held that having imposed a suspended sentence it was not necessary to fine the appellant as well. It was in that context that I said “a suspended sentence is adequate”, and carried on to say “it is not necessary to impose a fine in addition thereto”[21]. It was a case where I rejected the submission from the appellant that a suspended sentence was too heavy. In my judgment, it was a lenient sentence. 32.In the Court of Appeal decision HKSAR v Joof Saihou[22], Zervos J[23] observed:
and as Macrae VP said, comparisons with sentences passed in other cases can sometimes be misleading[25]. 33.This ground fails. Ground 3 and 4 34.The essence of these two grounds was that:
35.Mr Grossman stressed that at the material time the appellant justifiably felt threatened having been abused by people in black clothing and what he was doing was a civic duty to prevent harm to innocent people. 36.In consideration of sentence in this nature of offence, the whole circumstances of the particular case must be taken into account. It is quite impossible to set out an exhaustive list of matters to be considered. Very often the following matters are relevant:
37.The axe is 77 cm in length and has an axe head / blade of 12 × 20 cm. It is quite a heavy weapon. I had examined the axe. It has quite an artistic design but still is undoubtedly a potential lethal weapon. The appellant did not take it into possession by chance, he took it out from his home. He did so after having experienced hostile response by people whom he described as mob to his act of clearing the road. It was clearly a deliberate act of the appellant with full appreciation of the circumstances he would be in. Using of the axe as a weapon was within his contemplation, it was indeed his case that he possessed it for the purpose of self-defence. The guilty plea was tendered as it was accepted that there was no imminent threat of safety. As stated earlier, it was also contended that as there was no imminent threat of safety the risk involved was low. My observation in this regard is as stated above.[26] The appellant could have avoided the situation but he chose to do what he did, going to a place where risk of confrontation would have been obvious in the height of the social event despite it was in the morning. The axe could have been used readily when required by situation. 38.The offence is preventive in nature. It reflects that the society does not condone carrying of offensive weapon in public place by members of the general public. Its objective is to promote a relatively safe community and prevent people from taking the law into their own hands by resorting to violence to settle their own disputes. 39.With full appreciation of the circumstances and events leading to the incident, bearing firmly in mind that the attempt of clearing the road was an unselfish act and there was no allegation that the appellant would initiate force or violence on others, taking into account all relevant matters including those as stated in paragraph 24 above, in my judgment the nature and facts of the case was serious and a custodial sentence is called for. What the law aims at and seeks to prevent must be clearly conveyed to the members of the society. 40.I was of the view that the starting point of 7 ½ months imprisonment is within the reasonable range of sentence to be imposed in the circumstances of the case. There are no sufficient reasons to disturb it. 41.The Magistrate had appropriately given the appellant a 1/3 discount for his guilty plea. The total discount of about 40% which the Magistrate had given, in my judgment, sufficiently reflected all the mitigating factors. 42.The question was whether in the whole circumstances including that pertaining to the appellant other sentencing options might appropriately be imposed. 43.A submission of Mr Grossman was that a suspended sentence would have been appropriate in the present case. He reiterated all the mitigating factors mentioned and stressed that an immediate imprisonment term would have a significant harmful impact on the family of the appellant and the risk of re-offending was almost non-existent. 44.The offence is not an excepted offence and therefore there is no statutory prohibition in imposing a suspended sentence. 45.In SJ v Wade[27], the Court of Appeal held that apart from certain offences specified by the court, the law does not state that suspended sentence can only be imposed when there are exceptional circumstances. What the court should do is to have regard to all the circumstances of the commission of that offence and that of the accused in determining whether or not it is appropriate to exercise its power to suspend the operation of the sentence of imprisonment.[28] What Mr Grossman stressed, together with the circumstances leading to the incident, are matters which the court should take into account. 46.The Magistrate had considered whether the imprisonment term could be suspended and decided against it. Having considered carefully the whole circumstances of the case, I considered it a proper and correct decision. 47.The Magistrate had been asked to consider imposing a Community Service Order (“CSO”). He did not think fit even to seek a suitability report. 48.In any case, I had considered whether the immediate custodial term should be set aside and replaced by a CSO. 49.The appellant meets all the personal criteria of a candidate for CSO as set out in R v Brown[29]. However, as held by the Court of Appeal in SJ v Lin Min Ying[30], a court should not conclude that the accused must be given a CSO simply because all of the factors identified in Brown are identified. In deciding whether CSO is appropriate, the court has to consider both the circumstances pertaining to the offender and the circumstances pertaining to the offence. If the offence is of serious nature, exceptional circumstances are required to justify CSO.[31] In HKSAR v Chou Yau-pun[32], V Bokhary J recognized the difference between CSO and any form of custodial sentence. She observed:
50.In HKSAR v Wan Ka-kit[34], Stuart-Moore VP remarked that although CSO was on occasion described as “not a soft option” to a custodial sentence, on any view it was a softer option. 51.I would not say CSO cannot be considered for this offence, it depends on the degree of seriousness and overall circumstances in the individual case. Having considered the whole circumstances of the present case, in my judgment this case was of such a severity that it would be unduly lenient to impose CSO. Committing this offence by possessing a potentially lethal weapon in the overall political climate and the circumstances as in the present case calls for a sentence with deterrent effect. 52.I had considered the medical condition of the appellant. At the hearing, with the consent of the respondent, a recent medical report of the appellant was adduced which stated that bilateral hip osteoarthritis and early avascular necrosis (“AVN”) due to the mottled sclerosis at bilateral femoral heads were identified and if AVN is confirmed by MRI, immediate treatment such as medications or surgery would be suggested. The condition can be well taken care of when the appellant serves the term. I did not consider an otherwise appropriate sentence should be disturbed for this reason. Ground 5 53.By reason of the matters aforesaid, I did not find the sentence imposed wrong in principle or manifestly excessive. CONCLUSION 54.Accordingly, I dismissed the appeal against sentence.
Mr Raymond Cheng, SADPP, and Mr Wilson Lam, PP, for the respondent Mr Clive Grossman, SC, and Mr Warren Louis Tang, instructed by Messrs Wellington Legal, for the appellant [1] Section 17 of the Summary Offences Ordinance, Cap 228, Laws of Hong Kong. [2] Mr Wong Sze-cheung. [3] Written mitigation submission before the Magistrate, AB81. See also paragraphs 5 ‑ 7 of the Reasons for Sentence (AB17 - 18). [4] Mr Warren Louis Tong. [5] Save for two minor traffic offences. [6] Paragraph 12 of the Reasons for Sentence. [7] Paragraphs 13 and 14 of the Reasons for Sentence. [8] Mr Warren Louis Tang appeared for the appellant before the Magistrate. [9] [2014] 2 HKLRD 224, English translation (not an official version) at page 232. [10] Section 17, Summary Offences Ordinance, see footnote 1, and HKSAR v Chan So Ching, see footnote 9. [11] Cap 245, Laws of Hong Kong. [12] Paragraphs 12 of the Reasons for Sentence, certified English translation at AB26. [13] AB65 P-R. [14] Paragraph 12 of the Reasons for Sentence, AB19 - 20。 [15] Mr Cheng appeared together with Mr Wilson Lam, PP. [16] [2018] 1 HKLRD 968, an English translation which is not an official version starts at page 990. [17] Paragraph 123 of the judgment. [18] See footnote 9. [19] Paragraph 38 of the judgment. [20] Paragraphs 31 and 32 of the judgment. [21] [2014] 2 HKLRD 232, paragraph 38. [22] [2018] 3 HKLRD 456, paragraph 28. [23] As Zervos JA then was. [24] Paragraph 28 of the judgment. [25] Paragraph 35 of the judgment. [26] Paragraph 27 above. [27] CAAR 1/2015. [28] Paragraph 46 of the judgment. [29] (1981) 3 Cr App R (S) 294. [30] [2002] 2 HKLRD 823, paragraphs 19 ‑ 21. [31] SJ v Li Cheuk Ming [1999] 1 HKLRD 63, at 65. [32] [2002] 4 HKC 309, at 312. [33] The offence of access to computer with criminal or dishonest intent. [34] [2006] 3 HKLRD 9, at 19. | ||||||||||||||||||||||
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