Case Document

100%Judiciary

CAAR 13/2020

[2021] HKCA 255

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 13 OF 2020

(ON REVIEW FROM KCCC NO. 166 OF 2020)

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BETWEEN
	SECRETARY FOR JUSTICE	Applicant
	and
	CHAN Lincoln	Respondent

________________________

Before:

Hon Poon CJHC, Pang JA and Andrew Chan J in Court

Dates of Hearing:	10 February & 3 March 2021
Date of Judgment:	3 March 2021
Date of Reasons for Judgment:	12 March 2021

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REASONS FOR JUDGMENT

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Hon Andrew Chan J (giving the Reasons for Judgment of the Court):

A. Introduction

1.On 31 August 2020, the respondent pleaded guilty to one count of assaulting a police officer, contrary to section 63 of the Police Force Ordinance Cap. 232, before Principal Magistrate Ada Yim (“the Magistrate”) in the Kowloon City Magistrates’ Courts. After hearing mitigation, the Magistrate called for a probation report and adjourned the sentence to 17 September 2020. At the adjourned hearing, the Magistrate adopted the recommendation of the probation officer and placed the respondent on probation for 12 months with special conditions.

2.On 8 October 2020, the Secretary for Justice applied for leave to review the sentence pursuant to section 81A of the Criminal Procedure Ordinance Cap. 221. It was contended that the sentence was wrong in principle and/or manifestly inadequate because (i) the Magistrate did not sufficiently consider the sentencing norm of the offence and failed to give any or sufficient regard to the gravity of the offence in the present case; and (ii) the Magistrate erred in finding that probation order was an appropriate sentence.

3.Leave to review the sentence was granted on 9 October 2020.

B. Summary of facts

4.On 19 January 2020, protestors against the proposed amendments to the Fugitive Offenders Ordinance Cap. 503 gathered in the vicinity of Mongkok area. At about 2130 hours, masked protestors in black started to cause obstruction at Dundas Street junction with Sai Yeung Choi Street South.

5.At 2231 hours, police officers’ X and Y were in plainclothes patrol in the vicinity of Dundas Street. They found the respondent who was wearing full black outfit with a facemask wandering at the above location. At the time, the respondent was holding a piece of brick in his hand. During observation, the respondent intermittently shouted “死黑警，掟撚死你班仆街” (“Bloody black (triad) police. I (will) throw (at) you mother fuckers to death!”).

6.At 2237 hours, X tried to intercept the respondent and shouted “Police, don’t move”. The respondent looked at X and hit X’s left hand with the brick, and pushed X on the chest. X and Y then subdued the respondent.

7.Subsequently, X was sent to hospital and diagnosed with swelling, bruise and abrasions at his left hand. Four days of sick leave was granted.

C. Mitigation and probation report

8.The respondent, who was of previous good character, was 16 years old at the time of the offence and 17 at sentencing. He lived with his parents and three sisters. He was a student preparing for his 2021 DSE examination.

9.In his probation report, it was disclosed that the respondent was evasive in disclosing the present offence initially. Only after repeated probing, the respondent admitted his own wrongdoing. The respondent inclined nevertheless to victimize himself for being harmed by police officers during arrest and remained self-centred on trusting unverified information from social media. Whilst the respondent accused police officers of applying excessive force during his arrest which resulted in his injuries, he defaulted his first occupational therapy without reason. Further, the respondent admitted that he had attended another unlawful gathering of social unrest on 6 September 2020, one week after his appearance in court, as a volunteer first aider. The respondent was considered by the probation officer to be a marginal case for probation supervision.

D. Reasons for sentence

10.The Magistrate agreed with the probation officer that the present offence reflected the respondent’s immaturity and susceptibility to adverse influence from social media. The Magistrate found the respondent in need of external guidance and hence placed him on 12 months’ probation with special conditions.

E. The applicant’s ground of review

E1. Ground 1: The Magistrate did not sufficiently consider the sentencing norm of the offence and failed to give any or sufficient regard to the gravity of the offence in the present case

11.Ms Ng, SPP, on behalf of the applicant referred to the case of Secretary for Justice v Ko Wai Kit[1] and HKSAR v Choi Ping Chiu[2] and submitted that the sentence imposed in this type of case should carry a heavy deterrent element for it was vital that those engaged to execute police duties were able properly to do so. Even for a first offender of the offence, immediate custodial sentence was also called for.

12.Ms Ng further submitted that the respondent in the present case was acting aggressively at the material time. Taking into account his intermittent shout at the police that he was going to throw at the police officers prior to the assault, the respondent had put his intention into action by hitting X with the piece of brick. The brick, 9cmx6cmx10cm in dimension, was a potentially lethal weapon and that the court should not ignore its risk. Further, the respondent was amongst the group of protestors who were causing obstruction in Mongkok area, the potential risk, that others at the scene would be triggered by the respondent’s assault to resort to or escalate the level of violence, was high. The Magistrate ought to take into account the states and circumstances of the scene as reiterated by the Court of Final Appeal in Secretary for Justice v Wong Chi Fung[3]. Ms Ng submitted that although the Magistrate had acknowledged the seriousness of the offence, she failed to factor that in the sentence.

E2. Ground 2: The Magistrate erred in findingthat probation order was an appropriate sentence

13.Ms Ng submitted that the Magistrate firstly, erred in placing excessive weight on the circumstances of the respondent and the principle of rehabilitation; and, secondly, failed to give any/or sufficient regard to the principle of deterrence, protection of the public and societal disapproval.

14.As indicated in the probation officer’s report, the respondent maintained that he picked up the brick for self-defence and accidentally hurt X. The respondent also claimed that he had suffered from memory deterioration and dizziness after the event, yet his brain CT scan was unremarkable. The respondent also defaulted the very first occupational therapy session without any reason. The respondent showed little remorse.

15.Further, the Magistrate did not give sufficient regard to the respondent’s risk of reoffending as reflected by his participation in another unlawful event on 6 September 2020, shortly before the sentencing of the present case. In light of such obvious high risk, a strong deterrent sentence was called for.

16.Ms Ng also submitted that the imposition of probation order failed to reflect the societal disapproval of the offence and the seriousness of this case. It would have conveyed a wrong message that young age was a licence to leniency, even one was armed with a potential lethal weapon and had used it in the commission of offence.

F. The respondent’s submission

17.The respondent’s position in respect of the present application was that having regard to all the circumstances of the case and the circumstances peculiar to the respondent, the sentence imposed by the Magistrate was neither manifestly inadequate nor wrong in principle. Alternatively, Mr Reading SC, for the respondent, argued that other sentencing options, short of an immediate custodial offence, were available and appropriate in the circumstances.

18.Mr Reading submitted that either Detention Centre or Rehabilitation Centre is inappropriate in this present case having regard to the maximum sentence for the offence. Mr Reading relied on Wong Chun Cheong v HKSAR [4].

19.Mr Reading accepted that the offence of assaulting police officer in due execution of duty was a serious one. However, the contact between the brick and the back of hand of X occurred almost simultaneously with the respondent being subdued by police officers. Further, the facts indicated that the respondent had not attempted to throw the brick or use it before the officers came forward to subdue him.

20.Mr Reading also highlighted that the respondent’s DSE examinations were expected to be held in April or May this year. The respondent also received strong support from his family and school.

21.While acknowledging that Secretary for Justice v SWS[5] and Secretary for Justice v SHY [6] provide some guidance to the subordinate courts in sentencing young offenders, Mr Reading argued that the young offenders in both cases had committed far more serious offences involving throwing or possession of petrol bombs. The factual matrix of cases cited by the applicant was also different from the present case.

22.Mr Reading finally submitted that the both suspended sentence and community service order would be appropriate sentences in the event that the probation order imposed by the Magistrate was wrong in principle.

G. Our views

23.The maximum sentence for assaulting a police officer under section 63 of the Police Force Ordinance is a fine of HK$5,000 and 6 months’ imprisonment.

24.Although there is no sentencing tariff for this type of offence, the courts have repeatedly held that the offence whether under section 63 of the Police Force Ordinance or section 36(b) of the Offences against the Person Ordinance Cap. 212 is a serious one and the sentencing norm is one of immediate imprisonment. In Wong Chun Cheong, the case relied on by Mr Reading concerns only with unlawful lion dance without a permit, a trivial offence which the Court of Final Appeal held that the magistrate erred in sending the defendant to the Training Centre. As a matter of fact, it is very rare that a probation order will be imposed for assaulting police officers. Police officers or indeed any public officers who are merely carrying out their public responsibilities must be protected in the execution of their duties. If contemptuous and abusive behaviour towards police officer is tolerated, law and order will be compromised.

25.This Court in Secretary for Justice v SHY reiterated the correct principles in sentencing juvenile offenders and emphasized that the lower court should follow the same principles. We however note, at the time of sentencing, that the Magistrate did not have the benefit of reading what this Court said in that case.

26.As stated by The Court of Final Appeal in Secretary for Justice v Wong Chi Fung [7]:

“It was appropriate for the Court of Appeal to say that, in the circumstances now prevailing in Hong Kong including increasing incidents of unrest and a rising number of large scale public protests, it is now necessary to emphasise deterrence and punishment in large scale unlawful assembly cases involving violence.”

27.It is not disputed that earlier in the afternoon on 19 January 2020, a large crowd of protestors had gathered at Central. Massive protest was staged along Cotton Tree Drive, and as a result the whole area was shut down. Protestors caused obstruction to traffic and refused to disperse. Chaos erupted. Both police officers and protestors were injured. The protest lasted for a long period of time and eventually spilled into Mongkok where the defendant found himself in the evening. Protestors caused obstruction to traffic and similarly refused to disperse despite repeated demands. This was the factual background under which the present case arose. We however wish to emphasize that we only deal with the respondent on the basis of his participation in the evening at Mongkok.

28.Summary of facts indicated that the protest in Mongkok lasted late into the night. The respondent in his full black outfit actively participated in the protest and acted aggressively towards the police. On his hand was the brick, with a very sharp edge that had been taken from the pavement and broken into smaller pieces. Plainly, the respondent intended to use it to cause harm to police officers which, because of its sharp edge, could be grave. The offence committed by the respondent in the circumstances of this case was a very serious one.

29.The same sentiment as expressed in Secretary for Justice v SHY is equally applicable to the present case:

“4. … The magistrate put the respondent under probation for 12 months, which obviously contravened the above sentencing principles and completely ignored that the sentence in the present case must sufficiently reflect the two essential sentencing factors of punishment and deterrence. This was wrong in principle, resulting in an inadequate sentence. Therefore, this court must intervene.”

30.This Court has reiterated in Secretary for Justice v SWS what factors that a sentencing court should take into in sentencing juvenile offenders. When public interest justifies deterrent sentence, neither youth nor personal background is a strong mitigating factor and/or pale into insignificance.

31.In the present case, little remorse was shown by the respondent at that time. That can be seen from his participation of yet another unlawful event soon after his appearance in court and the fact that he attributed all the blames onto police officers, which he claimed to have caused all the injuries, for his action.

32.To classify the respondent as a marginal case for probation in our view was over generous. After careful consideration, we come to the conclusion that the probation order imposed by the Magistrate was wrong in principle and manifestly inadequate. The sentence fell outside the parameters of sentences which the Magistrate or indeed any magistrate who properly applied the law and evaluated the facts of the case ought to impose. We therefore set it aside at the conclusion of the hearing on 10 February 2021.

33.We asked for the preparation of Detention Centre and Rehabilitation Centre Suitability Report after taking the provisional view that the appropriate sentence should be an immediate custodial sentence with sufficient rehabilitation. We heard further mitigation from Mr Reading at the adjourned hearing on 3 March 2021.

34.According to the two reports, the respondent was considered psychologically unfit for Detention Centre owing to his emotion vulnerability. Medical officer also confirmed that he was medically unfit for detention because of poor exercise tolerance. The respondent was therefore considered to be unsuitable for detention in Detention Centre. On the other hand, the Correctional Services officer was of the view that the respondent was mentally, physically and psychologically fit for detention in Rehabilitation Centre. After a general assessment of his behaviour and attitude whilst on remand, the respondent was considered suitable for detention in a short-term counselling-based disciplinary training at the Rehabilitation Centre.

35.Rehabilitation Centre provides adequate punishment and suitable counselling service to the respondent. This in our view strikes the right balance between the need for public deterrence and personal rehabilitation. The respondent will also receive supervision upon his discharge from the correctional institution. Hopefully, the respondent will learn a lesson and mend his behaviour. As such, the respondent will be sentenced to undergo training at the Rehabilitation Centre, which, is proportionate to the gravity of the offence, the seriousness of the case and his overall culpability.

36.In conclusion, we allow the application for review against sentence, set aside the probation order and substitute it with a Rehabilitation Centre Order.