HKSAR v. Hsu Yik Man, Edmond

HCMA 171/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 171 OF 2008

(ON APPEAL FROM KCCC 8046/2007)

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Before:  Deputy High Court Judge Line in Court

Date of Hearing:  3 April 2008

Date of Judgment:  3 April 2008

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J U D G M E N T

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1.This is an appeal against a sentence of 1 month’s imprisonment following a plea of guilty to assaulting a police officer in the execution of his duty contrary to the Police Force Ordinance, Section 63. 

2.The facts are very simple:  the appellant was drunk.  He had taken a taxi; he had not got any money; he bilked it.  He was caught by the taxi driver.  The police came; the officer arrested the appellant.  And now I read from the brief facts, which were admitted below:  “When the officers were escorting the defendant back to the police vehicle, the defendant suddenly kicked once on PW3’s right thigh.”  That is all I know about the assault.  Another officer came and arrested him for the assault, and the appellant apologised.  The officer went off to hospital and “tenderness and redness on the right thigh” is reported to have been found.  It says he was treated and discharged and given a day’s sick leave.

3.It is difficult to assess from that limited information the severity of the assault, but even on the slim information available, it is apparent that it must have been deliberate, and it is submitted to me that it was not done in order to escape.  It was just an act of pure hostility, and it was not something the officer was just prepared to shrug off.

4.It goes without saying that the criminal courts are always anxious to protect police officers in the execution of their duty, and a custodial sentence is the norm, though obviously in suitable cases alternatives are there, including community service.

5.This appellant is 27 years old.  He is a grown-up.  He should have known better.  He acknowledges that the liquor taken is no excuse.  He has one previous conviction for driving with excess alcohol.  It was a bad case, because a suspended sentence of imprisonment was then passed.

6.I agree with the magistrate that a straightforward short period of punishment by imprisonment is necessary here.  Two things exercise my mind as to the length of the term.  One is, of course, that on a sentence of 1 month there will be no remission.  The man serving 6 weeks’ imprisonment will serve the same length as he does.

7.The other matter is this:  that, unlike the magistrate, I have  some information from his employer, and he is a gentleman who cares for this appellant in a way beyond the usual employer/employee relationship who is likely to have a beneficial influence upon him.  The appellant’s annual leave does not exceed 14 days a year. 

8.In those circumstances, I think the right sentence here is one of 14 days.  I am not going to burden the community service organisation with him because what I want to achieve is some straightforward punishment for getting drunk and behaving so badly.  Though there is nothing wrong with 28 days - I am not saying the magistrate was in error, or anything like that - this is a rehearing, and my view is very slightly different.  And, of course, I have heard a different mitigation, and I have different material before me.  But the important thing the magistrate and I agree upon is this:  that you cannot kick a police officer like this, doing his duty, and expect to keep your liberty. 

9.This appeal is allowed, therefore, only to the extent of reducing the 1 month to 14 days.

Mr Marco Li, Senior Government Counsel of the Department of Justice, for the Respondent

Ms Lorinda C W Lau, instructed by Simon Ho & Co., for the Appellant