Attorney General v. Hon Lit-hom

CAAR000008/1982

Headnote

Common assault committed by sergeant of police whilst on duty in command of a street patrol. The Magistrate ordered him to be conditionally discharged upon a bond of good behaviour with no conviction to be recorded and payment of $500 costs.

Held on application by Attorney General for Review, that as a general rule such conduct merits positive action by the Court.

The order of the Magistrate was set aside and replaced by a fine of $500 (with conviction to be recorded) and payment of a further $500 towards the costs of the prosecution.

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. Leonard, V.P., Cons & Fuad, JJ.A.

Date: 4th January, 1983.

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JUDGMENT

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Cons, J.A. :

1. This Application for Review by the Attorney General arises from an incident which occurred on the 27th March last year. Shortly before mid-night a man of some 25 years of age and his two friends were lounging outside a restaurant in the Wong Tai Sin area. A police patrol of about seven officers under the command of the Respondent passed by. There was some altercation between the patrol and the youths, the exact details of which are not clear. But the result was that the Respondent took the young man on one side, struck him one blow, manhandled him to some extent and caused him to be handcuffed. He was then taken back to the police station, but was released with no charge being preferred against him.

2. However a charge was preferred against the Respondent, one of common assault. In due course he appeared before a Magistrate and was convicted. He appealed against the conviction but his appeal, we understand, has been dismissed.

3. In the admirably clear statement of findings prepared by the Magistrate for the purpose of that appeal he sets out the factors, both for and against the Respondent, which ultimately led him to direct that no conviction be recorded against the Respondent but to discharge the Respondent conditionally upon his entering into a bond to be of good behaviour, at the same time ordering him to pay costs of five hundred dollars.

4. However, with every respect to the Magistrate, we think he gave insufficient weight to one of those factors, namely that the Respondent is a sergeant of police and that he committed the offence while he was on duty. We take it to be a general rule that when a person clothed with some authority intended to be used for the public good deliberately abuses that authority to gratify a private sense of power, then public condemnation of that conduct must be marked by some positive act of the court, no matter however well that person may have appeared to his superiors to have exercised that or similar authority previously.

5. We do not say that there can never be exceptional circumstances where such conduct, by reason of "the character, antecedents, age, health or mental condition of the person charged or to the trivial nature of the offence or to the extenuating circumstances under which the offence was committed" - these are the words of Section 36 of the Magistrate Ordinance - merits no or only nominal punishment. It is sufficient to say - and we do so with no hesitation - that the present circumstances do not fall within that category.

6. For this reason we allow the application of the Attorney, set aside the order of the Magistrate and substitute an order that the Respondent be fined five hundred dollars, with the conviction to be recorded, and that he further pay the sum of five hundred dollars towards the costs of the prosecution.

Representation:

I. Grenville Cross (Legal Department) for Applicant.

HON Lit-hom, respondent in person.