HKSAR v. Chan Wei-sye Joey

HCMA000414/2004

HCMA 414/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 414 OF 2004

(ON APPEAL FROM ESCC 4118/2003)

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Coram: Deputy High Court Judge Wright in Court

Date of Hearing: 4 May 2004

Date of Judgment: 4 May 2004

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J U D G M E N T

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1.The Appellant, a 31 year old female previously of good character, appeals her conviction of a single charge of assaulting a police officer in the execution of her duty and her consequential imprisonment for three months.

2.The Appellant was originally charged with two such offences. She was unrepresented at trial. At the close of the prosecution case the Magistrate ruled that there was no case to answer on the first charge: because the Appellant was unrepresented the Magistrate, generously but fairly, did not amend the existing charge to one of resisting that officer instead simply dismissing it. The Appellant elected to give evidence in respect of the second charge.

3.The prosecution witnesses related how the Appellant had gone to Wanchai Police Station to make a complaint: it was discovered there was a warrant for her which was backed by bail: the Appellant was unable to pay the bail: she was told that she would have to go into a holding cell: she refused: two women police officers were summoned to escort her to the cell: she maintained her refusal. None of this was in dispute.

4.The policewomen applied what the Magistrate found to be "reasonable force" to take her to the cell. The Magistrate found on the evidence that the Appellant resisted one of the two officers but, in respect of the second, went further and assaulted her by pulling her hair. The Magistrate accepted the evidence of the prosecution witnesses.

5.She rejected the Appellant's evidence that although she had initially objected to going into the cell she was later willing to do so but was herself assaulted by five or six police officers. In rejecting the Appellant's evidence, the Magistrate bore in mind on the requisite bases her previous good character.

6.I have considered what the Appellant has said to me today. The Magistrate was in the best position to see and hear the witnesses, so as to be able to assess their credibility. There is no good reason for me to interfere with her decision. The facts that she found proved on the evidence that she accepted led inexorably to the Appellant's conviction.

7.The appeal against conviction is dismissed.

8.After conviction the Magistrate called for a report on the Appellant's suitability to perform Community Service, extending the Appellant's bail. She carefully warned the Appellant that this was not to be taken as in any way limiting her sentencing options. The report was justifiably described by the Magistrate as "poor". The Appellant sought the suspension of any period of imprisonment: whether or not that would have been appropriate is immaterial as such a course is prohibited by law for this offence.

9.The Magistrate regarded the offence as one which did justify an immediate custodial sentence. It was obviously an assault at the lower end of the scale and attracted a sentence at that end: the maximum is two years imprisonment. The shorter any period of imprisonment which is to be imposed the more consideration a court should give as to whether any imprisonment is necessary - especially as in this matter where a first offender is concerned.

10.The Magistrate expressed the view that members of the police force have a difficult duty to perform and are entitled to be protected. In principle, I would agree with that observation.

11.However, in my judgment in the light of the overall circumstances of this matter, the Appellant's personal circumstances including her clear record and the nature of the assault three months imprisonment is manifestly excessive. I allow the appeal against sentence and substitute a period of six weeks imprisonment.

Representation:

Mr Simon Tso of Department of Justice, for the Respondent

Appellant in person