Secretary for Justice v. Kung Yat Kan, Clifford

[English translation – 英譯本]

CAAR 8/2020

[2020] HKCA 907

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 8 OF 2020

(ON REVIEW FROM KTCC 1981/2019)

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Before:  Hon Poon CJHC, Pang JA & Pang J in Court

Date of Hearing:  23 October 2020

Date of Judgment: 23 October 2020

Date of Reasons for Judgment:  9 November 2020

REASONS FOR JUDGMENT

Hon Pang JA (giving the Reasons for Judgment of the Court):

A.      Introduction

1.On 9 June 2020, the respondent was convicted on his guilty plea of “assaulting a police officer in due execution of his duty”, contrary to section 36(b) of the Offences against the Person Ordinance, Cap 212.  The trial magistrate (Ms Ivy Chui, Principal Magistrate) (“the trial magistrate”) adjourned the case for sentence after hearing submissions for mitigation and called for reports from the probation officer and on community service order in respect of the respondent.  On 23 June 2020, after considering the consolidated reports and further submissions from the defence, the trial magistrate accepted the recommendation in the reports and sentenced the respondent to probation for 12 months with two additional conditions[1].

2.The applicant was dissatisfied with the sentence, on the ground that the sentence was wrong in principle and manifestly inadequate, and therefore made an application pursuant to section 81A of the Criminal Procedures Ordinance, Cap 221 to the Court of Appeal for leave to apply for review.  Leave was granted on 16 July 2020.

3.On 23 October 2020, after the formal hearing of the review, this court found that the applicant’s grounds for the review were established and substituted the respondent’s sentence with a term of 30 days’ imprisonment with immediate effect.  These are our reasons.

B.      Relevant facts of the case

4.The charge alleged that the respondent, while on Tong Tak Street, Tseung Kwan O, New Territories, close to the junction with Tong Chun Street, near lamp post DE1344A, assaulted Sgt 58151 who was in due execution of his duty. The date of offence was 11 November 2019.

5.The amended summary of facts showed: In the morning on the day of the offence, a group of protestors were vandalising near exit A1 of Tseung Kwan O MTR station.  Police officers (including Sgt 58151 and PC 22776 who were in full protective gear) arrived to sweep the area.  At 8:25 in the same morning, while Sgt 58151 got to the location particularised in the charge in pursuit of the protestors along Tong Chun Street, a pedestrian (later known to be the respondent) suddenly kicked towards the sergeant’s left shin with his left foot.  The sergeant stumbled but did not fall onto the ground and managed to regain his balance after a few faltering steps forward[2]. Being protected by a shin guard, the sergeant’s shin was not injured.  PC 22776 who had been following behind witnessed what had happened, and hence went up to subdue and arrest the respondent.  Under caution, the respondent remained silent.  He attended a video-recorded interview in the company of his legal representative but refused to answer all the questions.

C.      The respondent’s background and submissions for mitigation

6.At the time of the offence, the respondent was aged 18 years and 1 month and working as a clerk, and he was 18 years and 9 months at the time of sentence.  He had a clear record before the present case.

7.In the preliminary mitigation, the defence submitted that the respondent came from a family of moderate means, but in recent years his family encountered dramatic changes, including his mother’s brain tumour and his father’s business failure and subsequent death from illness.  In addition to that, he had a younger brother who was autistic and mild mentally retarded. Owing to the tremendous financial pressure, his mother had to work for long hours, and various responsibilities of the family, including taking care of the younger brother, rested on the respondent.   

8.According to the defence, the respondent used to perform well academically and study at a band-one school. However, being affected by the changes in the family, he was not able to enter his favourite university after the 2019 Diploma of Secondary Education Examination (DSE), and he therefore continued to do the clerical job which he began to do after the DSE.  It was not until December of the same year that he resigned to concentrate on the preparation of retaking the examination in 2020.

9.The defence went on to say that the “three major stoppages”^[3] in fact took place on the day in question.  At the material time, the respondent, who was then still a clerk, was walking to Tseung Kwan O MTR Station with the intention of finding means of traffic to go to work. However, he committed the present offence on the spur of the moment and was very remorseful afterwards.

10.The defence continued to submit that apart from the respondent himself, his mother, relative(s), family friend(s), school teacher(s) and former employer were all willing to write to mitigate for him, and they all gave him very positive comments.  The defence emphasised that a custodial sentence would affect the respondent in attending university interviews in 2020, and hence urged the court to consider a non-custodial sentence.

11.After the reports had been obtained, the defence invited the court to accept the probation officer’s conclusion, namely, the respondent had committed the offence because of being immature and not good at dealing with crisis, and he had reflected what he had done, set a resolute target and determined not to re-offend.  The defence strongly suggested that the chance for the respondent to re-offend was remote and urged the court to accept the recommendation of putting him under probation for 12 months.

D.      Reasons for sentence by the trial magistrate

12.After hearing the preliminary submission for mitigation, the trial magistrate accepted that the respondent committed the offence “on the spur of the moment”.  She indicated that the circumstances in question were “undoubtedly serious” but since the assault was an “isolated” incident “without any hard object used” and the sergeant concerned was “not injured”, she was of the view that “[the respondent] could be given a chance” and called for reports from a probation officer and on community service order in respect of him before sentencing.  After making clear that other sentencing options were not ruled out irrespective of her request for the reports, the trial magistrate allowed the respondent to continue to have bail on the same terms pending sentence[4].

13.In formally passing the sentence, the trial magistrate said[5]:

“Defendant, I have the chance to read the report from the probation officer and that on the community service order. Err, the report is positive. You are now 18 years old. Your guilty plea in the first instance indicates your remorse, and it’s fortunate that the police officer in the case did not suffer any injury. From the probation officer, I have a better understanding of your family background. Having regard to your remorse on this occasion, I am minded to accept the recommendation in the report, which is putting you under probation for 12 months with two additional conditions which you must comply with ……”

E.      Reasons for review

14.The applicant advanced two grounds for this review, and Ms Margaret Yu, Assistant Director of Public Prosecutions, submitted on her behalf at the hearing.

E1.     Ground 1: the trial magistrate failed to given sufficient regard to the sentencing norm for the offence and underestimated the seriousness of the facts of the case

15.Ms Yu submitted that although the Court of Appeal had not laid down any sentencing guideline for the charge in question, the offence of assaulting a police officer generally attracted an immediate custodial sentence.  She referred to the case of Ko Wai Kit[6], which explained that the sentence under section 36(b) of the Offences against the Person Ordinance (referred to as “section 36(b)” below) must carry a deterrent element.  She also cited Choi Ping Chui[7], which suggested that if contemptuous and abusive behaviour towards police officers were tolerated, the rule of law and social order would be compromised.  She also quoted what Penlington JA had stressed in Hui Man Lee[8]: anybody who attacked a public officer who was simply carrying out his duties, a task which was often unpleasant, could expect no sympathy from the courts.

16.Ms Yu further submitted that generally prosecution could be brought against the conduct of assaulting a police officer by either of the following two ways: namely, section 36(b)[9] as in the present case or only summarily by section 63 of the Police Force Ordinance[10] (referred to as “section 63” below).  However, irrespective of the route taken, Ms Yu submitted that according to the judgments of the Court of First Instance in So Kan Ming[11] and Chan Pak Yeung[12], immediate imprisonment was appropriate even for an assailant who had a clear record[13].

17.As to the term of sentence, Ms Yu cited the appeal of a case of “common assault” (Chan Wai Kwok[14]) and three cases in relation to section 63 (嚴敏華 ^[15], 李珏熙 ^[16] and Chiang Wee Tiong ^[17]), which show that in cases of assault on a police officer, the sentence of immediate imprisonment for two to four weeks in respect of a conviction after trial was common and beyond criticism.  Even though the defendant in Chiang Wee Tiong had a positive good character, an imprisonment for two weeks was inevitable.

18.As to cases in relation to section 36(b), in the case (Chan Pak Yeung[18]) mentioned by the applicant in the written application, the sentence was even as high as nine months for a conviction after trial.  In another case (紀鎮基 [19]) in which the statutory provision in relation to the offence was unknown, the defendant assaulted three police officers within two hours, and with his not guilty pleas and previous similar records, he was sentenced to six weeks’ imprisonment for each offence, which were served concurrently.

19.Ms Yu stressed that the facts in the present case were serious.  With no suggestion that the sergeant had made any verbal provocation or behaved improperly, the respondent could not rely on as an excuse that he did so out of emotional agitation or righteousness.  On the contrary, by kicking towards the sergeant, he obviously aimed at obstructing the sergeant’s pursuit of the protestors so that the latter could flee.  Furthermore, the respondent’s behaviour might trigger violence from others, create a ripple effect and aggravate the situation to a state beyond control.  Had the sergeant fallen in the course of running because of being tripped, he could have been badly injured.

20.Ms Yu contended that the respondent was already an adult, and although his family was dogged by misfortune, it had nothing to do with the present case, therefore his culpability could not be significantly reduced, allowing his sentence to departing from the sentencing norm, simply on a claim of impulsiveness.

E2.     Ground 2: sentence by way of a probation order was wrong in principle and manifestly inadequate

21.Ms Yu pointed out that the offence under section 36(b) was an “excepted offence”[20] and hence section 109A of the Criminal Procedures Ordinance, which stipulated the restriction on imprisonment of persons between 16 and 21 years of age, was not applicable,

22.Ms Yu referred to Law Ying Cheung[21], using “robbery”, which was also an “excepted offence”, as an example,  to emphasize that the legislature determined that heavy punishment should be imposed for this kind of offence with no exception to young offenders.  Nevertheless, the trial magistrate put so much weight on the respondent’s personal circumstances that the seriousness of the charge itself was ignored.

23.Ms Yu referred to the judgment given by the Court of Appeal in Wong Chi Fung[22], to criticise the trial magistrate for according so much weight on the respondent’s rehabilitation that other sentencing factors such as protection of the public, meting out punishment, open condemnation and deterrence were ignored.  She considered that giving a probation order as the sentence in the present case would convey a wrong message to the public, namely a misconception that young age, a clear record and piteous personal background could reduce the culpability of committing a serious offence.

24.Ms Yu asserted that a probation order was indeed wrong in principle and manifestly inadequate in view of the social climate and circumstances at the scene at the material time, and the purpose for which the respondent committed the offence and the potential consequences. 

25.Ms Yu indicated in her written submissions that even approaching the sentence from a perspective most favourable to the respondent, the trial magistrate should have imposed a custodial sentence of a short term or a non-custodial sentence having more deterrent effect than a probation order.  Upon questioned by this court, she clarified that she was just trying to say that a probation order was not reasonable and not suggesting to this court a substitution of sentence with a community service [order].  She reiterated that an immediate custodial sentence was the only appropriate sentence in the present case.

F.      The respondent’s response

26.Mr Li Kwok Wai, acting for the respondent, admitted that a probation order was a lenient sentence in the present case.  He accepted that the sentencing norm for assaulting a police officer was an immediate custodial sentence.  He also accepted that the sentence for this section 36(b) offence could not be suspended because it was an “excepted offence”.

27.Mr Li contended that the Court of Appeal might substitute the respondent’s sentence with a community service order.

28.He cited two magistracy appeals, Ogawa Shuichi[23] and鄧志賢 [24], submitting that there were precedents in which the original sentence for a section 36(b) offence was substituted with a community service order on appeal.  He even said that the present case was less serious than these two.

29.Mr Li emphasised that a community service order was no “toothless tiger” and had even greater deterrent effect than a probation order.  He cited the judgment of the Court of Appeal in Wong Chi Fung[25], stressing that a community service order was punitive and not a lenient sentence, which was also useful to the rehabilitation of young offenders.

30.Mr Li contended that because of the respondent’s youth, guilty plea and remorse, the minor nature of the circumstances of the offence, and that the sergeant in question had suffered no injury, the present case could be distinguished from the cases cited by the applicant, giving the court more room to impose a non-custodial sentence on him.

31.Mr Li invited this court to make reference to the guideline issued by the Sentencing Council for England and Wales[26] on the offence of “assault with intent to resist arrest” [27], regard the gravity of the present case as being equivalent to the second of the three categories under the said guideline[28], and thereby consider substituting the respondent’s sentence with a community service order.  The ingredients of the above offence included assault with intent to resist lawful arrest on oneself or others.

32.Mr Li accepted that the guideline of the Sentencing Council for England and Wales was not directly applicable to Hong Kong, however, he cited Chu Wing Yin Christine^[29] and Ngo Van Nam^[30] as examples, submitting that the Court of Appeal had previously made reference to the guideline in cases.

33.At the hearing, Mr Li informed this court that the respondent had succeeded in resitting the public examination and was at present taking a bachelor’s degree course at the Lingnan University, majoring in language studies.  He submitted that a custodial sentence would have an impact on the respondent’s studies.  He reiterated that the respondent had committed the offence purely on the spur of the moment while walking past the scene on the way to work.  He further said that there was no evidence in the case showing that the respondent had conspired with the protestors or that his behaviour had caused any actual obstruction to the police in law enforcement.

34.Mr Li acknowledged that since community service order was work dominated, the probation officer did not recommend it to the trial magistrate. He nevertheless submitted that this court could disregard the probation officer’s comment on the basis of different considerations.  He asserted that having regard to the respondent’s personal and family background, a custodial sentence would be particularly harsh and hard.  He urged this court to give “exceptional mercy”. 

G.      Discussion and analysis

G1.    Essence of the respondent’s submissions

35.At the hearing, Mr Li expressly submitted that he could hardly find from his research a precedent in which a probation order was given as the sentence for assaulting a police officer.  Even he himself found such sentence could hardly stand.  This concession is reasonable and wise and has greatly narrowed down the dispute in this application.

36.Since the offence under section 36(b) was an “excepted offence”, meaning the sentence could not be suspended, Mr Lee could only try to persuade this court to substitute the original sentence with a community service [order] which carried certain deterrent effect, and he cited Ogawa Shuichi[31] and鄧志賢[32] in support.  Ogawa Shuichi involves a Japanese businessman residing in Hong Kong who got drunk after a party and refused to be sent to the hospital.  He suddenly grabbed round the neck of the police officer who went up to ask for his personal information.  He was quickly subdued and was cooperative, and therefore found to have no intention to resist arrest or injure the police officer.  In 鄧志賢, also under the influence of alcohol, a young technician, who was a first offender, was suspected to have connection with a case of assault in a bar and so was arrested by the police going to the scene for investigation.  He punched once on a police constable who went up to enforce the law.  However, by the time the detention centre order originally imposed on him was dismissed by the Court of First Instance, he had already been detained for over three months, and the charges other than assaulting the police officer had been withdrawn by the prosecution.  Mr Li’s suggestion that the present case was similar to these two cases and was even less serious could not stand.

37.Mr Li submitted that the Court of Appeal had repeatedly made reference to the guidelines of the Sentencing Council of England and Wales. What he said is correct but not complete.  For instance, in Chu Wing Yin Christine[33], the Court of Appeal looked at the practices in England and Australia with the aim of making reference to their principles of sentencing for the offence of “causing grievous bodily harm by dangerous driving” instead of the type or term of sentence.  In Ngo Van Nam[34], what the Court of Appeal looked at as reference was also the scheme of mitigation in sentence upon an early guilty plea in various common law jurisdictions, and not the actual extent of reduction.  Although, in Chu Wing Yin Christine[35], Macrae VP indicated that the information from other jurisdictions in respect of comparable offences was “perhaps” useful in establishing the general range of sentences, he also reminded us that caution should be exercised because the local conditions of different jurisdictions might be different and there were various differences as well.  In respect of this point, we notice that public officers were not the only subject for the offence of “assault with the intention to resist arrest” in England, and using violence in resisting the arrest made by a citizen was also covered, which is by itself a significant difference.  We also notice that some of the aggravating factors listed in the guideline have ambiguous wording but may be applicable[36], making it doubtful as to whether the present case can be classified as belonging to a lower category merely on the face of the guideline.  We do not think the submissions in this regard is helpful.

G2.    Seriousness of the present case

38.The prosecution accepted that the respondent was only a passer-by and not a protestor.  However, the “three major stoppages” was staged on the day of the offence, the respondent should have expected a more chaotic situation outside.  It was even proved to be the case when he found that the MTR station had been closed, a lot of citizens were gathering on the road and some carriageways were blocked[37].  When police officers in full protective gear were running towards him in pursuit of protestors in the direction opposite to his[38], he must realise that the police officers were in execution of their duty.

39.Under the said circumstances, the [respondent], by kicking towards Sgt 58151, must be aiming to obstruct the sergeant from enforcing the law.  Whether the police were chasing after to catch or dispersing the protestors, and whether or not they failed because of an attack on their colleague(s), the conclusion remains the same, which Mr Li has never tried to refute.  The defence, Mr Li and even the trial magistrate all stressed that the respondent had acted on the spur of the moment; this could hardly be criticised. However, the situation is in no way the same as what the report for probation and community service order has stated, ie the respondent became “nervous” on seeing the police[39] and committed the offence because of “not being good at dealing with crisis” [40].  This to a certain extent contradicts what the respondent stated in his letter for mitigation, in which he said he understood that “citizens should adopt lawful means in pursuing their demands and should not express their discontent with violence”^[41].

40.The sergeant was not injured notwithstanding that the kick hit his shin. One of the reasons for that was of course he had put on a shin guard.  It was pure luck that the sergeant did not fall on the ground as a result of the kick while running fast, otherwise he might be seriously injured.  This is common sense.  Nevertheless, what this court would like to emphasise, as the applicant has correctly pointed out, is that the respondent took action to attack the police under the circumstances at the material time was likely to cause others to imitate, thereby leading to a violent conflict of a greater scale.  The Court has in Law Man Chung, (date of judgment: 24 April 2020)[42], a case of desecrating the national flag, gave a judgment in the same direction[43]. The lower courts should have noticed and applied consistently in comparable circumstances.

41.In Law Man Chung, the Court also mentioned the following sentencing consideration which is almost inseparable from the above one[44]：

“…Depending on the facts of the case, the court has to consider the date, the time, the location and the occasion when the offence was committed, the number of people present, as well as the possibility whether other people present would be actually encouraged to join in and commit the offence. If an uproar was caused in the crowd and other offences were committed as a result, or people who held different views over the national flag were likely to clash, or had indeed clashed, with each other, these aggravate the seriousness of the offence.”

Since the “three major stoppages” took place on the day in question and a lot of people were at the scene, the above paragraph in the judgment is undoubtedly appropriate.  The risks such as drawing in other people in the assault on the police, protestors returning to snatch the arrested person (ie the respondent), people having different views launching a counter-attack on witnessing what had happened must be higher under the atmosphere there and then than in other occasions of an assault on police officer(s) (including social conflicts of smaller scale).  The trial magistrate should have noticed this point as well.

42.Finally, the Court of Final Appeal indicated in Wong Chi Fung[45]: 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.  This observation is certainly applicable to cases of assaulting police officer having similar background, and lower courts should also follow.

43.In conclusion, the circumstances in the present case are far more serious than what the trial magistrate indicated.  She had not even identified any aggravating factors in the case, which could have clearly been gleaned from the agreed facts and relevant precedents.  The course taken by Mr Li was similar to that used by the trial magistrate, focusing entirely on those few factors in favour of the respondent and striving to express them as reasons for substituting the sentence with a community service order.  However, such course could hardly shake away the seriousness of the case that the respondent had to face.

G3.    Conclusion and substitution of sentence

44.The offence committed by the respondent is serious, more culpable than cases of assaulting a police officer in general.  Even if his personal circumstances, the state of his family and the probation officer’s recommendations are taken into account, an immediate custodial sentence remains the only sentencing option.  The trial magistrate placed too much weight on the said factors, departed from the options under the sentencing norm in cases of assaulting a police officer and put him under probation for 12 months, which is a sentence wrong in principle and manifestly inadequate. This must be rectified.  Having regard to all the circumstances and factors relevant to the case, we adopt a starting point of eight weeks.  For the respondent’s guilty plea, a one-third discount is given and the sentence is reduced to 37.3 days.  This is an application for review of sentence, there is therefore a further reduction by one week to 30 days.  This is our decision.

H.      Order

45.The applicant’s application for review of sentence is allowed with the original probation order set aside, and the respondent is ordered to serve the sentence of 30 days’ imprisonment for the present case with immediate effect.

Ms Margaret Yu, Assistant Director of Public Prosecutions, and Ms Claudia Ng, Senior Public Prosecutor, of the Department of Justice, for the Applicant

Mr Li Kwok Wai, instructed by L & L Lawyers, assigned by the Legal Aid Department, for the Respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.