HKSAR v. Lee Ping Hei and Another

[English Translation - 英譯本]

CAAR 14/2020

[2021] HKCA 293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 14 OF 2020

(ON REVIEW FROM WKCC 734/ 2020)

Before: Hon Poon CJHC, Pang JA and M Poon J in Court

Date of Hearing: 25 February 2021

Date of Judgment: 25 February 2021

Date of Reasons for Judgment: 17 March 2021

Reasons for Judgment

Hon M Poon J (giving the Reasons for Judgment of the Court):

A.    Introduction

1.On 18 September 2020, the 1^st and 2^nd respondents were convicted after trial by Mr Lam Tsz-kan, Magistrate (“the trial magistrate”) of one charge of assaulting a police officer in the due execution of his duty, contrary to section 36(b) of the Offences against the Person Ordinance, Cap 212, and they were both sentenced to three months’ imprisonment.

2.On 12 October 2020, leave was granted to the applicant to apply to the Court of Appeal for a review of the sentence pursuant to   section 81A of the Criminal Procedure Ordinance, Cap 221.

3.On 25 February 2021, after a formal review hearing, this Court found that the applicant’s grounds of review were made out. We set aside the sentence of three months’ imprisonment and in its place imposed a sentence of 10 months’ immediate imprisonment on each of the two respondents. Here are our reasons.

B.   Facts of the case

4.According to the facts found by the trial magistrate, around 23:00 on 1 January 2020, a large group of plainclothes police officers, including PW1, were patrolling in Mong Kok and saw that some people in black were blocking the junction of Nelson Street and Fa Yuen Street with miscellaneous objects. PW1 followed the people in black and got to somewhere off the back alley next to Golden Era Plaza on Sai Yee Street. He was revealed while raising the mobile phone with the intention to make a visual record and he then ran away in the direction of Shantung Street. A group of people, including the two respondents, chased him from behind. PW1 was punched and kicked upon reaching the junction of Shantung Street and Tung Choi Street.  Afterwards, the police reinforcements arrived. PW1 was rescued and sent to hospital. He was diagnosed with head injuries, loss of consciousness for one to two minutes; abrasions on left cheek and on the dorsum of the right hand; redness and tenderness over the right parietal lobe of the head (further examination revealed mild abrasions on the scalp over that area and blood clots all over the two wounds, and there was blood clotted over an abrasion over the left parietal lobe); and tenderness over the upper nape. Further physical examination also revealed multiple abrasions on his hands and on the finger joints, superficial abrasion on right knee, lateral left thigh swelling and intramuscular haematoma. After PW1 was discharged, he had to attend several follow-up examinations at the clinic of a private specialist in neurosurgery, and the diagnosis included headaches and vertigo after a concussion and injury to left occipital nerves, resulting in intermittent occipital neuralgia on the left. He was granted a total of 36 days of sick leave.  

5.The two respondents were arrested on 10 February and 11 February 2020 respectively and under caution, they admitted they were the “lookouts” for the assailants.

C.   Background of the respondents and submissions for mitigation

6.At the material time, the 1^st respondent was aged 22 and the 2^nd respondent was aged 25. They both worked in a fast-food restaurant. The 1^st respondent was single and was the breadwinner of the family. The 2^nd respondent was married with two young children. Counsel acting for them indicated in their respective mitigation that they were influenced by the social atmosphere and committed the offence purely out of ignorance of the law with no premeditation, and that they were not the instigators.[1]

D.   Reasons for sentence

7.The trial magistrate considered that the injuries sustained by PW1 were more serious[2] than those in general assault cases against police officers involving shoves or punches, and a joint enterprise was involved[3]. On the other hand, he has also taken into account of the following:

(1)  Both respondents had a clear record.

(2)  They were not the actual assailants, but “just watched from the sidelines and were prepared to inform the assailants of police reinforcements” [4], and the duration of the assault was not long[5]. Therefore, he considered that their culpability should be at the lowest end of the category among the participants[6].

(3)  The two respondents had no dispute on most of the facts of the case, save whether the admissions were sufficient for establishing the case. Apart from the evidence on their admissions, the prosecution lacked sufficient evidence to substantiate any conviction.

8.Regarding the facts of the present case, the trial magistrate considered a starting point of three months appropriate. The two respondents were convicted after trial and no discount was given.

E.   The stance of the applicant in this review

9.Mr Lai Ka Yee, Ned, Senior Assistant Director of Public Prosecutions and Ms Tse Yu Lam, Phenix, Senior Public Prosecutor, on behalf of the applicant, submitted the following grounds:

(1)  The trial magistrate did not sufficiently consider that a deterrent sentence should be passed for the offence of assaulting a police officer. 

(2)  The trial magistrate did not sufficiently consider that the number of assailants and lookouts at that time rendered the situation nothing different from an unlawful assembly involving actual infliction of serious personal violence with the gravity resulted from encouraging others to join in to commit the offence.

(3)  The trial magistrate erred in assessing the culpability of the two respondents and was wrong in finding their culpability lesser than other assailants.

(4)  The starting point of the sentence did not sufficiently reflect the severity of the facts of the present case.

(5)  When passing sentence, the magistrate took into account factors such as that the two respondents were first offenders, they were ignorant of law and agreed to most of the prosecution evidence, and the prosecution did not have sufficient evidence except their admissions, but none of them amounted to a mitigating factor justifying a significant reduction from the starting point.   

(6)  Mr Lai pointed out that, although the Court of Appeal had not laid down sentencing guidelines on the offence of assaulting a police officer, it emphasized on many occasions that in general the sentence for this type of case should be a deterrent sentence of immediate imprisonment, so as to protect the safety of the police officers who were in due execution of their duty. Otherwise, law and order would be compromised[7].

(7)  On that night, unlawful assemblies involving violence occurred in Mong Kok. The two respondents also admitted that they joined in as “lookouts” on the spot under the influence of the environment at that time. They covered up the assailants who were attacking the police officer. It is obvious that they were encouraged to join in and committed the offence, and there was a real possibility of creating a ripple effect of a larger scale.

10.Mr Lai went on to submit that the role of a lookout was of utmost importance because his cover-up could enable others to succeed and continue to commit a crime and could even help the actual assailants flee as in the present case. Therefore, they were not less culpable than the actual assailants: SJ v Tso Tsz Kin[8] and HKSAR v Liu Hiu Zhi[9].A short duration of attack was not a favourable factor to the two respondents. In fact, the injuries sustained by PW1 were not minor. It would be hard to imagine what PW1’s injuries would have been if the reinforcement of other police officers had not arrived at the scene in time.

11.Mr Lai argued that the facts of the present case were not at the lowest end among cases of similar nature as suggested by the trial magistrate because it involved a joint enterprise. The assailants punched and kicked the police officer for many times under no provocation, causing him serious injuries. When the two respondents noticed that other police officers arrived for reinforcement, they alerted the assailants so that they successfully fled. A starting point of three months’ imprisonment failed to adequately reflect the gravity of the facts.

12.The applicant emphasized that when passing a deterrent sentence, a clear record was in general not a strong mitigating factor. Having regard to the evidence in the present case, even if a first offender and the ignorance of the law amounted to mitigating factors, the reduction should never be so much as eventually arriving at a starting point of three months.  In addition, in relation to the defence of the two respondents, the applicant contended that there was not much room for argument regarding most of the evidence adduced by the prosecution. Their consent to most of the prosecution evidence was only part of their defence reasonably conducted in their favour and not sufficient to constitute any basis for reduction in sentence.

F.   The stance of the respondents

13.Ms Fiona H. Y. Nam, counsel for the respondents, raised objection against the application for review of sentence. Ms Nam agreed that the trial magistrate was relatively lenient when adopting a starting point of three months, which was however neither wrong in principle nor manifestly inadequate.   The respondents had no dispute that the sentence for assaulting police officers should be deterrent, but Ms Nam also pointed out that the trial magistrate had already borne in mind this sentencing principle, rather than ignoring it, as shown by the immediate custodial sentence he had imposed. Ms Nam emphasized that there was no evidence in the present case to show that the assault on the police officer and the unlawful assembly already occurred in Mong Kok were related. She pointed out that there were not many people in the vicinity of the location of the attack and the defendants were acquainted with each other, so there was no encouragement to others to commit a crime together. Ms Nam referred to HKSAR v Wong Cho Shing & Ors[10]and pointed out that definitely the court, when passing sentence, could impose different sentences depending on the culpability of the participants with regard to the facts. The two respondents in the present case participated in the criminal act spontaneously, and there was no evidence to show that it was premeditated or planned beforehand to be a part of the attack.

14.Ms Nam submitted that re-offending could render a defendant a heavier sentence and being a first-time offender was not an irrelevant factor in sentencing. As the respondents were young adults in their twenties, it was not difficult to understand that they found it hard to judge or understand that the culpability of acting as a lookout was equal to that of participating in the actual assault.  

15.The respondents considered that their admissions were especially important in relation to their convictions in the present case. Therefore, the trial magistrate considered the fact that most of the prosecution evidence was not disputed by the two respondents and the fact that they had made admissions as mitigating factors. This was the magistrate’s discretion with which the appellate court should not readily interfere.

G.   Discussion and analysis

16.This review involves the sentencing of the offence of assaulting a police officer. First, we must point out that when the trial magistrate adopted a starting point of three months, he stated that he had already “considered and balanced all the factors”. He further indicated that no discount would be given to the respondents who were convicted after trial. [11]

17.In passing sentence, the starting point refers to a term of sentence which a judge deems appropriate after taking into account the facts of the case and the details of the criminal acts, but before considering the aggravating and mitigating factors, as Macrae VP of the Court of Appeal pointed out in paragraph 15 in HKSAR v Fok Ka Po Joe (No 2),[2019] 2 HKLRD 1:

“A starting point is intended to be that term of imprisonment which a judge deems appropriate for the particular criminal conduct evidenced before him/her, before any consideration of the factors which aggravate or mitigate that conduct. As Stock VP explained in HKSAR v Muhammad Akram, where the trial judge had said much the same as the judge in the present case:

“We would comment in passing that a point which is arrived at after taking into account aggravating features is not an initial starting point; a starting point is the point taken before aggravating and mitigating factors”.”

18.Macrae VP pointed out in HKSAR v Herry Jane Yusuph[12]thatthe court would identify a starting point after considering the role played by the defendant in the case[13], and it was only after that would the court consider other factors to raise or lower the starting point:

“70. Having identified the starting point by reference to the quantity of the dangerous drugs and the role and culpability of the defendant, the sentencing judge will, fourthly, consider the factors which bear on the eventual starting point to be adopted (which is better referred to as ‘the notional sentence after trial’ in order to distinguish it from the ‘starting point’…”

19.The trial magistrate did not follow this sequence. On the contrary, he listed out some aggravating factors and mitigating factors before eventually arriving at the starting point of three months. This Court cannot see how those aggravating factors could raise the starting point to the notional starting point after trial. We do not know what adjustments or reduction the trial magistrate had made before arriving at the final term of sentence, or whether he thought that the aggravating factors and mitigating factors could be offset against or counterbalanced by each other.

G1.    Gravity of the offence of assaulting a police officer

20.This Court has pointed out on many occasions that assaulting a police officer is a serious offence. When passing sentence, the court must consider what the defendant has done and under what circumstances the offence of assaulting a police officer was committed[14]. In HKSAR v Choi Ping Chiu[15], the Court of Appeal said,

“28. Police officers, in the due execution of their duties, are symbol of law and order, and must be respected and protected from abuse. If contemptuous and abusive behaviour towards police officers were tolerated, law and order would be compromised…”

21.The background of HKSAR v Chan Pak Yeung^[16]was that the “Mong Kok Riot” was at the peak, the appellant threw plastic water bottles twice at a police officer who was removing a recycling box, one landed on his left leg and the other on his chest. Barnes J took the view that the starting point of nine months was very severe, but in the light of the serious facts of that case, she did not consider it manifestly excessive:  

“77. I fully agree with the words of the magistrate:

“9.  Without a shadow of doubt, assaulting a police officer in the due execution of his duty is a serious offence. The court has always emphasized that the sentence must be severe and deterrent, clearly indicating that the court does not condone or tolerate such acts; otherwise, the personal safety of frontline police officers on duty will not be safeguarded, social order and peace will be harmed, and the morale of the police force will suffer a heavy blow. Even if a defendant is a first offender who comes from a good background and has a good character, the sentence has always been one of immediate imprisonment.”

...

80.  The facts of this case differ greatly from those of the cases cited by the appellant. As the respondent submitted, the “Mong Kok Riot” was at its peak at the material time, and it can be said that the rally participants at the scene were “poised for action and there was even the possibility that a confrontation was on the verge of breaking out”. In comparison with Lee Yuk Hei, who committed the offence during the “Umbrella Movement”, the present case is obviously serious.

81.   ... The court must send out a strong message: the court does not condone or tolerate assaults on police officers in the execution of their duties; the sentence must be one of deterrence.”

22.As can be seen from the abovementioned case, assaulting a police officer is a serious offence. Ms Nam, counsel for the respondents, asserted that there was no evidence in the present case to show that the said assault on the police officer was related to the road blocking occurred at that time or earlier in Mong Kok. Nevertheless, when passing sentence, it is necessary for the court 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...” [17]

23.The date of the incident was 1 January 2020 on which there were large-scale public processions. The 1^st respondent also admitted in his undisputed record of interview that he had participated in a procession held on Hong Kong Island before the offence. They “saw a need to have people gathered in Mong Kok, and so we went over together to have a look”[18]. These were the circumstances in which the present case took place.

24.Even according to the two respondents’ records of interview, they did not arrive at the scene at the same time as the assailants. The police officer was already under attack when they arrived and they on their own volition took up the role of a lookout. They joined in and committed the offence jointly for being instigated by the atmosphere at that time.   Their acts might further encourage other persons and bring about a ripple effect. Ms Nam’s submission that there were not many persons at that time at that place and that the chance for the others to be encouraged was not high was not supported by exhibit P9. This Court has viewed the relevant clip(s) during the appeal hearing. As seen from the video clip, when other plainclothes officers for reinforcement arrived and lifted up PW1, who was rendered unconscious due to the attack, quite a number of unknown passers-by were around and provoking the police officers verbally.

G2.    Joint enterprise and the role of the respondents

25.According to the trial magistrate’s statement of findings, PW1 was revealed in the back alley while attempting to make a visual record of the people in black with the mobile phone. While he was running away in the direction of Shantung Street, the two respondents and other people together chased from behind to try to stop him.[19]  The trial magistrate found that it was not sufficient to prove their participation in the joint enterprise of assaulting PW1 by solely relying on the above evidence[20]. He held that the two respondents and the assailants were in a joint enterprise on the basis of the two respondents’ admissions of acting as “the lookouts” in the records of interview being accepted.[21]

26.The respondents referred to Wong Cho Shing, and pointed out that the court could certainly pass a different sentence according to the different extent of participation in a joint enterprise. In that case, two superior police officers not only failed to stop their subordinates’ misconduct but acquiesced their subordinates to assault the victim by abusing their power. The appellate court found that their culpability was more serious than that of the actual assailants: 

“179. ...Tsang was badly assaulted by several police officers who kicked, stamped on and beat him for a sustained period while he was lying defenceless on the ground... And while they did so, senior officers looked on and allowed their subordinates to break the law...

...

181.  ...and for D1 and D2, as the senior officers who lent their approval and authority to their subordinates to commit this offence, which it lay within their power to stop, at 24 months’ imprisonment. We do not, with respect, accept the respondent’s submission in support of the judge’s finding that all of the participants in this joint enterprise were of equal culpability.”

27.The case of Wong Cho Shing stood unique on its own facts and cannot be compared with the present case. In general, the culpability of the participants in a joint enterprise is similar. However, under certain special circumstances, for example, that the leader of a group or a superior, who is at a higher position, solicits or acquiesces the act of the group is an aggravating factor. In relation to the evidence accepted by the trial magistrate in the present case, the function of the two respondents acting as lookouts by the side during the attack was essential. According to the evidence from the 1^st respondent’s admission, he witnessed that PW1 had been kicked and punched for half a minute, and their act as the lookouts enabled the assailants to flee successfully. This Court is of the view that in the present case, their sentences should not differ much from those of the actual assailants.  

G3.   Other mitigating factors

28.We agreed to the applicant’s assertion that a clear record, ignorance of the law and so on may be mitigating factors, but it would mostly be subject to a guilty plea. As to a defendant who pleads not guilty and does not dispute most of the prosecution case at trial, it is very often a tactical strategy and is not necessarily given any discount in sentence, and the magistrate may deal with it at his discretion. 

G4.   The trial magistrate’s errors

29.For the above reasons, we find that the trial magistrate has erred in principle when considering the sentence which is also manifestly inadequate.

H.   Substitution of sentence

30.This Court is of the view that the grounds advanced by the applicant are substantiated. We set aside the original sentence of three months. Taking into account the maximum penalty of this offence is two years’ imprisonment, we consider the appropriate sentence for the actual assailants after trial is 15 months’ imprisonment while the appropriate sentence for the two respondents after trial should be 12 months. Since it is a review of sentence and in the light of the fact that the two respondents have completed their prison term and will have to return to prison, a further reduction of two months would be given. The final term of sentence is 10 months.

Mr Lai Ka Yee, Ned, Senior Assistant Director of Public Prosecutions and Ms Tse Yu Lam, Phenix, Senior Public Prosecutor, of the Department of Justice, for the applicant

Ms Fiona H. Y. Nam, instructed by C & Y Lawyers, assigned by Director of Legal Aid, for the 1^st and 2^nd respondents

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Walter Lee, solicitor.