R. v. So Kan Ming

HCMA000201/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 201 OF 1996

--------------

--------------

Coram : The Hon Mr Justice Leong in Court

Date of hearing : 3 May 1996

Date of judgment : 3 May 1996

------------------------

J U D G M E N T

------------------------

1. The Appellant pleaded guilty to two charges: (A) Careless Driving and (D) Assaulting a Police Officer. He was fined $2,000 and disqualified for two months for holding any driving licence on the (A) charge and sentenced to two months imprisonment on the (D) charge.

2. The facts which were admitted are these. The Appellant was observed driving a private car along Heung Sze Road in Tuen Mun by two police officers on anti crime mobile patrol. The Appellant suddenly swerved across the double white lines on the road and stopped abruptly in front of the police officers' vehicle which had to stop abruptly. The Appellant and another person came out of this car. The officers also alighted and revealed their identities and warned the Appellant and the other person to calm down but they ignored the warning and scolded the officers with foul languages. The Appellant then suddenly kicked the buttock of one of the officers causing him to fall and sustain injury. The Appellant and the other persons were subdued and arrested. The medical report showed that the officer suffered only tenderness.

3. In his Reasons for Sentence, the magistrate was of the opinion that the Appellant's careless driving was of the worst kind and he regarded the Appellant fortunate not to have been charged with reckless driving. As regards the driving manner of the Appellant, he said this:

"It was apparent that the Appellant had used his car as an instrument to block and stop another car travelling along the road with total disregard to the safety of other road users. It was quite unthinkable what would have happened if the people in the other car were not police officers but civilians."

4. The magistrate regarded the attack on the police officer as outrageous and he said:

"... The fact that the Appellant was at the time acting under the influence of alcoholic drinks was not really mitigation but an aggravation in the sense that he should not have driven in the first place when he was under the influence of drinks and to behave like a mania after a few drinks was no excuse either as a person should know how to control himself especially after drinking ..."

5. Mr Whitehouse for the Appellant submitted that the traffic offence was not one of the worst types in that there was no collision and there was no evidence to show it was a deliberate one. He submitted that the magistrate had put the emphasis on the fact that the Appellant had been drinking prior to the incident but there was no such evidence. Whether the officers were acting in the execution of duty when the assault took place was still questionable.

6. Mr Whitehouse submitted that the Appellant was a professional self employed driver and sole bread winner of the family. The Appellant also had problems with the health of his family members: father suffering from heart disease, mother from diabetes and daughter from bone disease. In addition, his mother in law had kid disease. The Appellant it was submitted had pleaded guilty to these offences and had spent four days in prison before he was released on bail pending appeal. This short period of incarceration would have been sufficient punishment for what he did.

7. Mr Veltro submitted that the magistrate was entitled to take a serious view of the matter.

8. The magistrate had indeed reached his serious view of the incident based on his conclusion that the Appellant had been drinking. There was however, no evidence of the Appellant driving under the influence of drink nor was there any evidence that the Appellant's manner of driving was deliberately to stop the car of the police officers. The careless driving offence must be regarded as no more serious than one of crossing double white line and stopping and causing another vehicle to stop to avoid a collision. There was no injury or collision in the incident. It cannot be regarded as the worst kind of careless driving bordering on reckless driving which would have attracked a disqualification. A fine would have been sufficient penalty in the present case.

9. The magistrate was obviously influenced by his conclusion that the Appellant had been drinking when he took the serious view in imposing an immediate custodial sentence of two months imprisonment on the assault charge. But there was no evidence to support that conclusion.

10. Let me make it quite clear that there is no doubt that it is a serious offence to assault a police officer acting in the execution of his duty and it is one which would attrack an immediate custodial sentence even for a first offence. However, in view of the special circumstances in the background of the Appellant, the health conditions of his family members, and the fact that he had spent four days in prison which would have taught him a lesson and remind him to behave better in future, all of which call for different considerations, I am prepared to tamper justice with mercy. I consider that a heavy fine would be sufficient in these circumstances.

11. Accordingly, the appeal against sentence is allowed. The sentence on the (A) charge is reduced to the extent that the order for disqualification is set aside and on the (D) charge, the sentence of imprisonment is set aside and a fine of $5,000 substituted.

Representation:

Mr F. Veltro, S.C.C., for Crown

Mr F.C. Whitehouse, inst'd by M/s Tony Lam & Harrace Lau, for Appellant