HKSAR v. Ku Kit Ling

HCMA707/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.707 OF 2004

(ON APPEAL FROM KCCC 5074 OF 2004)

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

BETWEEN

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

Before : Hon Nguyen J in Court

Date of Hearing : 30 September 2004

Date of Judgment : 30 September 2004

Date of Reasons for Judgment : 13 October 2004

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

REASONS  FOR  JUDGMENT

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

1.On 30 September 2004, I dismissed the appeal against conviction and allowed the appeal against sentence.  I said I would give my reasons on a later day.  This I now do.

BACKGROUND

2.The appellant was convicted of the offence of assaulting a police officer in the due execution of his duty by Mr S.M. Sham, sitting at Kowloon City Law Courts on 21 June 2004 and was sentenced by the Magistrate to nine months’ imprisonment.  She now appeals against both the conviction and sentence.

3.The evidence was that the appellant and a male were having an argument in a private building one early morning.  Both of them appeared to have been under the influence of alcohol.  The male caused some damage to two notice boards whereupon the caretaker summoned the police.  The victim arrived at the scene with a colleague to investigate the matter.  During the investigation, there was a confrontation between the male and the appellant on the one hand and the two police officers on the other.  During the confrontation, the appellant grabbed the scrotum of the victim and pulled it a few times causing pain to the scrotal area of the victim. 

Grounds of Appeal Against Conviction

4.The grounds of appeal advanced by Miss Tung, appearing for the appellant, were firstly, that the solicitor who defended the appellant at the trial was incompetent to the extent that the appellant’s interest was prejudiced.  The second ground advanced by counsel was that the prosecution had failed to disclose to the defence that there was a copy of a CCTV tape of the area where the incident occurred thereby prejudicing the defence in its conduct of the trial.

5.The allegation of incompetence on the part of the solicitor arose mainly because he had made a submission of no case to answer based upon the appellant’s alleged intoxication.  This submission was properly rejected by the Magistrate who correctly ruled that the offence that the appellant was charged with was an offence of basic intent as opposed to one of specific intent and therefore the appellant should not be allowed to say that she lacked the necessary mens rea due to voluntary intoxication. 

6.Miss Tung submits that because the solicitor was in error on this matter of law, his cross-examination of the prosecution witnesses was so brief that the appellant’s defence was not properly put before the court. 

7.Miss Tsang, appearing for the respondent, submits that the error in law on the part of the solicitor in no way prejudiced the appellant because her defence was that what she did was to demonstrate to the police officers how she said she had earlier on been indecently assaulted by the caretaker of the building where the incident occurred.  Both police officers testified that they never asked the appellant to demonstrate, and this evidence was accepted by the Magistrate.

8.The appellant also alleged in her affidavit that she had been advised by the solicitor that a woman police officer had testified that she, the appellant, was drunk on the night in question and that this evidence was helpful to her defence.  She also implied that she had been advised by the solicitor that it would be better if she did not give evidence.  The solicitor, in his reply to inquiries made by the appellant’s present solicitors, asserted that he never gave her that advice and it was the ultimate decision of the appellant not to give evidence.

9.I find that, despite the error in law on the part of the solicitor when he made the submission of no case, his conduct in the defence of the appellant was not such as to have prejudiced her case.  I also find that for a solicitor of his standing, he would not have advised the client not to give evidence and would have, as he asserted in his letter, advised her of the pros and cons of giving evidence but allowing her to make the decision whether to take the stand.

10.Ground 1 therefore fails.

11.In relation to Ground 2, I am informed by Miss Tsang that the police never seized the CCTV tape and therefore the tape was never in their custody or under their control so they were under no obligation to (a) disclose that fact and (b) give a copy to the defence.  

12.In any case, in the reply by the solicitor then acting for the appellant, he said that he did not call for the tape because it did not relate to the appellant and also because there was a possibility that it might contain material prejudicial to the appellant.

13.Ground 2 therefore also fails and the appeal against conviction is dismissed.

GROUNDS OF APPEAL AGAINST SENTENCE

14.In support of her submission that the sentence imposed was manifestly excessive, Miss Tung quoted to me the following cases.

(1)     HKSAR v. Hung Mei Kwan, HCMA No.1257 of 2002

15.In that case, the appellant was convicted after trial of one count of obstructing a police officer and one count of assaulting a police officer in the due execution of his duty.  On Charge 1 he was sentenced to three months’ imprisonment and on Charge 2 to nine months’ imprisonment, to be served consecutively to the 1^st Charge.  

16.The facts of that case were that he had kicked a police sergeant on the thigh, causing the sergeant to fall and to sustain a minor cut and abrasion to his elbow, redness to his arm, a minor cut to his finger and some minor damage to his windbreaker and his beat radio.  What aggravated the offences were the 35 previous convictions of that appellant, one for assaulting a police officer, three for resisting arrest, one for obstructing a police officer and four offences involving wounding, fighting or assault.

17.Beeson J was of the view that the sentence imposed was on the high side but was justified having regard to the appellant’s record and she dismissed the appeal against sentence.

(2)     HKSAR v. Ma Sai Yuk, HCMA No.1316 of 2000

18.The appellant in that case had thrust a hand holding a lit cigarette and pushed it against the right collarbone area of a Customs and Excise officer, thus causing a burn mark on that area.  The appellant, in the course of the subsequent struggle, also scratched the officer’s arm.

19.The appellant had 58 previous convictions, three for assaulting a police officer and one for common assault.  A sentence of four months’ imprisonment imposed was upheld on appeal. 

(3)     HKSAR v. Souza Eric John, HCMA No.884 of 2000

20.In that case for assaulting a police officer, the appellant was sentenced to 28 days’ imprisonment.  The appellant had become abusive and violent towards a police officer after a party of police officers had visited his flat to investigate a complaint he had made against a neighbour for causing excessive noise.

21.The appellant had nine previous convictions, of which two were for similar offences.  The appeal against sentence was dismissed.

(4)     HKSAR v. Yao Chi Yuen, HCMA No.104 of 2000

22.In that case for assaulting a police officer, the appellant was sentenced to two months’ imprisonment.  During inquiries into a traffic accident, the appellant swore furiously at a police officer and used his right hand to punch the police officer, the blow landing on his lower lip.  There was a tiny abrasion caused to the policeman. 

23.The appeal against sentence was dismissed.

(5)     HKSAR v. So Kam Lok, HCMA No.58 of 1999

24.In that case for assaulting a police officer, the appellant was sentenced to three months’ imprisonment.  The appellant was in police custody and while he was being fingerprinted, he lost control and used his elbow to elbow on the chest of a police officer.  There was then a struggle during which the appellant and the police officer both fell onto the ground.  The appellant kept on putting up a struggle by swinging his right hand with a handcuff still on it and kicking at the police officer, and he put up a vigorous struggle.  The police officer suffered injuries.

25.The appellant had eight previous convictions and his appeal against sentence was dismissed.

(6)     R. v. Ho Chak Yin, HCMA No.724 of 1995

26.In that case for assaulting a police officer, the appellant was sentenced to six months’ imprisonment.  He had been arrested for disorderly conduct.  While in the police truck being taken back to the police station, he kicked a police officer on the leg causing slight redness and minor bleeding. 

27.This was the second conviction of its kind for the appellant.  The sentence of six months was reduced on appeal to four months’ imprisonment. 

28.In that case, R. v. Fung Chi San, HCMA No.418 of 1994 was quoted where the appellant pushed one police officer to the ground and struck another officer on the face, neck and chest damaging that officer’s spectacles.  The appellant was sentenced to one month’s imprisonment by the appellate judge when he appealed against his original sentence of a fine of $5,000.

CONCLUSION

29.Taking these previous decisions into account and accepting that consistency in sentencing was desirable, I had regard to the facts of this particular case, particularly the fact that the appellant, by the time when she was admitted to bail, had served a total period of 58 days and, also having regard to the fact that she had a clear record, I allowed the appeal against sentence to the extent that the sentence of nine months should be reduced to enable the immediate release of the appellant.  The appellant is a single mother with a son aged about two years.  There was also the fact that her actions that evening had clearly been influenced by the alcohol that she had consumed.

Miss Olivia Tsang, GC of the Department of Justice, for HKSAR

Miss Sylvia Tung, instructed by Messrs Paul W. Tse, for the Appellant