Read the full judgment text of CAAR 8/2020 on BabelCite. This Court of Appeal judgment was delivered on 23 October 2020 before Poon CJHC, Pang JA & Pang J.
Criminal law – sentencing review – assaulting a police officer in due execution of his duty – section 36(b) of the Offences against the Person Ordinance, Cap 212 – section 81A of the Criminal Procedures Ordinance, Cap 221 – respondent Kung Yat Kan Clifford aged 18 years 1 month at time of offence – working as clerk – clear record – on 11 November 2019 during the 'three major stoppages' at Tseung Kwan O, respondent kicked the left shin of Sgt 58151 with his left foot while the sergeant, in full protective gear, was pursuing protestors along Tong Chun Street – sergeant stumbled but did not fall and was not injured as he wore a shin guard – respondent was a passer-by walking to MTR station to go to work – respondent remained silent under caution and refused to answer all questions in video-recorded interview – respondent pleaded guilty and convicted on 9 June 2020 – trial magistrate Ivy Chui accepted offence committed on spur of moment, viewed assault as isolated with no hard object and no injury to officer, called for probation and community service order reports, and sentenced respondent to 12 months' probation with two additional conditions on 23 June 2020 – applicant Secretary for Justice applied for review on ground sentence wrong in principle and manifestly inadequate – leave granted 16 July 2020 – Court of Appeal found grounds established on 23 October 2020 – whether trial magistrate failed to give sufficient regard to sentencing norm and underestimated seriousness of facts – whether probation order wrong in principle and manifestly inadequate – whether community service order appropriate alternative – sentencing norm for assaulting a police officer requires immediate custodial sentence with deterrent element per Ko Wai Kit, Choi Ping Chiu and Hui Man Lee – section 36(b) is an 'excepted offence' under Schedule 3 of Cap 221 – section 109A of Cap 221 inapplicable – suspension of sentence not available – probation order unprecedented for this type of offence – community service order precedents Ogawa Shuichi and 鄧志賢 distinguishable as both involved offenders acting under the influence of alcohol with cooperation – English Sentencing Council guidelines for assault with intent to resist arrest not directly applicable to Hong Kong and public officers not sole subject under English law – aggravating factors present: chaotic atmosphere of 'three major stoppages', risk of imitation, potential for escalation of violence, respondent deliberately aiming to obstruct police pursuit – trial magistrate placed excessive weight on personal circumstances, family difficulties and rehabilitation at the expense of deterrence, punishment, public protection and open condemnation – per Wong Chi Fung and Law Man Chung, deterrence and punishment must be emphasised in cases with similar background – respondent's youth, guilty plea and lack of injury to officer insufficient to depart from custodial norm – application allowed – probation order set aside – starting point eight weeks' imprisonment – one-third discount for guilty plea reducing sentence to 37.3 days – further reduction of one week for review application under settled practice – final sentence 30 days' imprisonment with immediate effect.
Legal issues: Whether the trial magistrate failed to give sufficient regard to the sentencing norm and underestimated the seriousness of the facts · Whether a probation order was wrong in principle and manifestly inadequate · Whether a community service order should be substituted for the original probation order
Outcome: Application for review of sentence allowed; probation order set aside; sentence substituted with 30 days' imprisonment with immediate effect.
Cited by 14 cases · Cites 13 cases