HKSAR v. Ling, Tsz Lung

HCMA 45/2022

[2022] HKCFI 1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 45 OF 2022

(ON APPEAL FROM FLCC 342/2021)

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Before:  Deputy High Court Judge Woodcock in Court

Date of Hearing:  21 June 2022

Date of Judgment:  19 July 2022

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J U D G M E N T

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1.The appellant was convicted after trial for the offence of common assault. The victim assaulted was a traffic warden, PW1, a public officer who was working at the time of the offence. The appellant was sentenced to 3 months’ imprisonment after trial. He has abandoned his appeal against his conviction and now appeals against his sentence only.

Prosecution case

2.The prosecution case was that on 1 March 2021, PW1 was working and on duty in uniform as a traffic warden in Fanling, New Territories. He had just issued a traffic ticket to a parked vehicle when the appellant drove by in a private car and swore at him 3 to 4 times. He drove away. That vehicle ticketed belonged to the appellant’s mother. 20 to 30 minutes later, the appellant approached PW1 on foot and intentionally and deliberately used his right shoulder to hit PW1’s right shoulder with force. At that moment, they were face-to-face.

3.The appellant was holding a parcel at that time and the impact caused him to drop it on the floor. PW1 spun around to ask why the appellant had bumped into him when he accidentally kicked the parcel on the ground. The appellant accused him of deliberately kicking the parcel and demand compensation immediately. The police were called; the appellant tried to leave but he was restrained and arrested. PW1 felt pain from the physical contact but did not require medical attention.

Defence case

4.The appellant’s case was that the physical contact was accidental and he did not intentionally seek out the complainant to confront him. In fact, he had to turn his shoulder away from PW1 to try to avoid colliding with him on the road when they happened upon each other.

5.The appellant had been working in the area and was on his way to deliver a parcel. On his way, he saw 2 traffic wardens issuing parking tickets. He saw his mother’s vehicle parked illegally and he called a colleague to tell him to immediately come and remove the car. He parked his vehicle and went to move another relatives illegally parked vehicle, a second one. He saw a traffic warden, PW3 and asked him not to ticket his mother’s vehicle as someone was coming to drive it away as soon as possible. He then got into the 2^nd relatives vehicle to drive it away to avoid a ticket.

6.As the appellant drove away, he then saw PW1 writing a ticket for his mother’s vehicle despite PW3 having agreed to not issue his mother a ticket. This led to an aggressive verbal altercation between himself and PW1 where he swore at the traffic warden. He was in that second vehicle at the time of abusing PW1 whilst PW1 was issuing that ticket.

7.After he parked that other relative’s vehicle he went to his van to retrieve a parcel that he had to deliver. On his way to deliver it he essentially bumped into PW1. As they were approaching and obviously about to collide, he had to turn his right shoulder to avoid him. However, physical contact was unavoidable and as a result of their contact, he dropped the parcel that he was holding.

8.The appellant’s evidence was that this traffic warden, PW1 deliberately kicked the parcel away with force and it travelled about 4 to 5 m along the road. He accused PW1 of deliberately kicking it and demanded compensation whilst PW1 accused him of bumping into him. The police were called and he was surrounded by 3 traffic wardens who would not let him leave; in fact, he was restrained by his T-shirt.

9.The issue was whether or not the contact between the 2 men was deliberate or accidental. Whether the appellant had the mens rea to assault the traffic warden. There was a dispute on facts and credibility of witnesses was an issue.

The Magistrates Findings

10.The learned magistrate did not find the appellant credible. He found discrepancies between what he told the police under caution after his arrest and what he said in the witness box. He found on the appellant’s own evidence that the route he took between his car and the delivery location meant he deviated rather than took the most reasonable and direct route on foot. The magistrate found he deliberately sought out the traffic wardens and deliberately and physically confronted PW1 after he ticketed his mother’s car.

11.The magistrate found the appellant’s evidence contradictory and nonsense. Despite the appellant’s clear record, he did not find him an honest witness and placed no weight on his evidence.

12.The magistrate went on to find the traffic warden PW1 honest and reliable. The other 2 witnesses called did not give evidence on any direct issue. One was the arresting officer and the other a traffic warden who did not witness this assault nor did he remember promising the appellant that he would not ticket his mother’s vehicle.

13.In sentencing the appellant to 3 months’ imprisonment, the magistrate considered the facts he found proven to be serious enough for an immediate custodial sentence and one of a considerable length.

14.The appellant is 22 years old and at the time of his conviction had a clear record. A detention centre report was obtained and the appellant detained for 20 days pending this report. He was deemed physically unsuitable for a detention centre order because of a medical reason.

15.The magistrate said that although the assault itself was not serious and that there was no injury sustained, he found there to be aggravating factors which called for an immediate custodial sentence. Those include the fact that the victim was a traffic warden, a public officer enforcing the law at the time of the assault. He found the appellant disrespected him verbally and physically. He found that through counsel and during the trial there was an accusation that the police had a bias towards the appellant and that the victim, PW1, had abused his power when he restrained him when preventing him from leaving the scene after the assault. He found the appellant’s actions were clearly to exact revenge when the public officer was only discharging his lawful duty. He found his behaviour outrageous, contemptuous and abusive.

16.In his Statement of Findings, he does suggest that those who assault a traffic warden should be punished more severely than those who assault a police officer because a traffic warden is unarmed and has no equipment to protect himself. However, in the same paragraph, paragraph 100, he is of the view that a strong message should be disseminated to warn would-be offenders that those who assault a public officer should expect the same punishment as those who assault a police officer.

17.He took into account the appellant lacked remorse and maintained his innocence when interviewed by a Correctional Services Officer in the preparation of his detention centre report and also indicated through counsel after his conviction that he intended to lodge an appeal.

Background of the appellant and mitigation advanced

18.Immediately after the conviction of the appellant, mitigation was put forward on his behalf. It was stressed that he was 22 years old, single, worked for his father in a logistics company as a driver and delivery worker and had a clear record. Counsel for the appellant urged the court to consider a community service order. Sentence was adjourned to obtain a detention centre order and senior counsel was engaged to mitigate on that return date.

19.It was, at the next return date, urged upon the magistrate to reconsider the possibility of a community service order and that the appellant was now remorseful. It was submitted that the offence and the assault itself was not serious; no injuries were sustained. There were many letters of mitigation submitted urging the court to show leniency.

Grounds of Appeal

20.The appellant abandoned his appeal against conviction and only pursued his appeal against sentence. I have considered written submissions filed. It was submitted that the 3-month term of imprisonment for this common assault was manifestly excessive and/or wrong in principle. There were 3 perfected grounds relied upon:

a.  The magistrate erred in placing too much weight on the aggravating factors which resulted in an excessive sentence.

b.  The magistrate found that assaulting a public officer should be punished more severely or at least as severely as those who assault police officers. He did not take into account that each case should be considered on its own individual facts.

c.  Lastly, he failed to consider or did not give sufficient weight to the appellant’s clear record, the facts of the assault and lack of injury sustained.

Respondent’s Reply

21.The respondent submits that the magistrate’s reasons for sentence and the sentence itself was not wrong in law or in principle. Assaults committed on public offices who are carrying out their lawful duties are serious and deterrent sentences; namely custodial sentences are more than warranted.

22.It was suggested that there was no bias towards the appellant by the magistrate when he showed no remorse after his conviction. The magistrate is entitled to take into account the lack of remorse demonstrated. In fact, the aggravating factors that led to the custodial sentence were all reasonable and led to the conclusion that the facts were such that a more lenient sentence was inappropriate.

23.The respondent submitted many magistrate appeal cases with similar facts; where a public officer or a police officer was assaulted whilst carrying out their duties and custodial sentences were upheld.

Discussion

24.There is no tariff for this offence and the magistrate was in no way wrong when he said that assaulting a public officer is a serious offence. In fact, Mr Ho for the appellant agrees that a custodial sentence is appropriate for the facts of this case. He does however, differentiate those cases relied upon by the respondent; the facts here must be considered alone and with the background of this appellant in mind.

25.The main thrust of his submission is that the facts do not merit a sentence as long as 3 months when the appellant is a young man with a clear record. He was rude, impulsive, foolish and convicted after trial but his actions didn’t deserve a 3-month sentence. I agree with his submission.

26.Counsel for the respondent has conceded during the course of the appeal that the sentence might be on the high side but that it was within the range of an appropriate sentence.

27.There is no doubt the appellant’s behavior was arrogant, impulsive and the nature of this offence does attract a custodial sentence, however, more weight should have been placed on the fact the common assault was a shoulder barge with no resulting injury. The victim did not seek medical attention nor need time off work. As reluctant as I am to interfere with the magistrate’s sentence, I find a 3-month term of imprisonment to be excessive under the circumstances.

28.It is on the high side as conceded and I allow the appeal to the extent that I substitute that term of imprisonment with a sentence of 14 days’ imprisonment. The appellant was in remand pending a detention centre report for 20 days. He has served this sentence. This sentence will allow for his immediate release.

Mr Ho, Victor, instructed by Messrs Cheung & Liu, for the Appellant

Miss Mok Wan Yin, Winnie, SPP, of the Department of Justice, for the Respondent