Secretary for Justice v. Ma Kwai Chun

CAAR 11/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 11 OF 2007

(ON APPEAL FROM ESCC NO. 5828 OF 2006)

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BETWEEN

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Before : Hon Stock JA, Burrell J and Wright J in Court

Date of Hearing : 29 July 2008

Date of Judgment : 29 July 2008

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J U D G M E N T

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Hon Stock JA (giving judgment of the Court):

Introduction

1.This is an application by the Secretary for Justice for review of sentence under section 81A of the Criminal Proceedings Ordinance, Cap. 221 pursuant to leave granted on 9 October 2007.

2.On 26 March 2007 the respondent was convicted of common assault after trial before Mr Winston Leung, Permanent Magistrate.  She was fined $500 with three days’ imprisonment in default of payment.

3.The applicant contends that the sentence imposed was manifestly inadequate and/or was wrong in principle in that it merited – indeed required – an immediate custodial sentence.

Background

4.At the date of sentence, the respondent was aged 60 years.  She has a previous conviction for common assault for which she was fined $1,500 in November 2004.

5.In August 2005 the Court of First Instance granted an injunction which prohibited the respondent from entering court buildings, save for the purpose of attending hearings, and from contacting judiciary staff. 

6.On 24 July 2006 an order for the continuation of the injunction was made.  The order of 24 July 2006 was served upon the respondent at her home by a legal executive of the Department of Justice, Mr Wong Man-kit.  On the back of the sealed copy of the order, there appears the name of a Miss Jenny Fung, a Senior Government Counsel attached to the Civil Division of the Department of Justice whom the respondent had met in the course of the proceedings for the injunction.  Miss Fung’s precise role in those proceedings is not clear from the papers but it can safely be assumed that she was actively engaged in those proceedings.  

7.The magistrate found that the respondent was upset that the order had been delivered to her person at her home on an evening.  She thought that her privacy had unnecessarily been invaded and that the order could have been delivered through the letterbox.  So the following day, 28 November 2006, the respondent telephoned Miss Fung and aired her discontent in a manner which the magistrate described as “very unfriendly”.

The assault

8.The respondent then went to the Department of Justice at its premises in Queensway where, by arrangement, she was met by Mr Wong Man-kit at a reception desk on the second floor.  As ill luck would have it, Miss Fung appeared at the reception area intending to fetch drinking water.  So their paths crossed.

9.The magistrate found that at that point the respondent wanted to talk to Miss Fung but, realizing this, Miss Fung turned her back immediately to make her way towards her office.  At that point, the respondent reached out and pulled Miss Fung’s hair and the collar of her upper garment.  Miss Fung was thereby pulled backwards and almost lost her balance, but she held onto a desk for support.  A number of persons came to her assistance.

10.Miss Fung went to a hospital where the diagnosis was: “Left posterior neck tenderness.  Range of movement of neck full.  No scalp lesions identified.  Complained pain at scalp.”  Miss Fung lost a few hairs.

The argument

11.The points that are made by the applicant for review are these:

(1)  that a fine of $500 failed to mark the gravity of the respondent’s conduct in carrying out an unprovoked attack at the workplace of the legal representative of the respondent’s litigation opponent;

(2)  that the first objective of sentencing is to deter the offender as well as other members of the community minded to commit this sort of offence and that a sentence of the kind imposed in this case provides no deterrence;

(3)  that the magistrate failed to give sufficient weight to the fact that the attack was on a public officer and that such persons require protection from the courts;

(4)  that the respondent, having pleaded not guilty, could not lay claim to any leniency on account of remorse or time-saving;

(5)  that the conduct was in the nature of contempt of court since it was an assault on a legal representative who had acted in connection with proceedings to which the respondent was a party;

(6)  that insufficient weight was accorded the fact that the attack was carried out at the complainant’s place of work;

(7)  that inadequate weight had been accorded to the nature of the injuries; and

(8)  that, applying the test suggested by Attorney General’s Reference No. 4 of 1989 (1989) 11 Cr App R(S) 517, 521, the magistrate imposed a sentence that fell outside the range of sentences which the magistrate, applying his mind to all relevant factors, could reasonably consider appropriate.

12.Our attention has been drawn to a number of authorities:

(1)  R v WONG Pak Lam Criminal Appeal No. 509 of 1986, 27 February 1987, unreported, for the proposition that: “The object of any sentence is first of all to deter the offender and also other members of the public likely to commit that sort of offence”;

(2)  R v Hui Man Lee, Criminal Appeal No. 399 of 1993, 4 November 1993, unreported, for the statement by the court: “We would reiterate again that anybody who attacks a public officer who is simply carrying out his duties, a task which is often unpleasant, can expect no sympathy from the courts.”;

(3)  R v So Kan-ming, Magistracy Appeal No. 201 of 1996, 3 May 1996, unreported, for the proposition that “… it is a serious offence to assault a police officer acting in the execution of his duty and it is one which would attract an immediate custodial sentence even for a first offence.”; and

(4)  Attorney-General v Butterworth and others [1963] 1 QB 696, for the proposition that contempt of court was not confined to pending cases and might be constituted, as happened in that case, by victimisation of a witness after he had testified since that was an interference with the administration of justice as a continuing process.  By analogy, it is said, the assault upon Miss Fung was in the nature of a contempt of court.

Principles

13.We agree that any assault upon a public officer in the execution of that officer’s duty is a matter to be regarded by the courts as serious.  The general sentencing policy in relation to such an offence must be one that has deterrence as its uppermost aim.  An assault by a litigant upon a legal officer carrying out his or her duties in relation to the litigation carries its own aggravating characteristic, namely, the possibility or prospect of an indirect adverse effect upon the free administration of justice; and this will be so whether the assault is carried out with a view to dissuading that officer from carrying out his or her function or as an act of vengeance for that officer having done so.  In the normal course, such conduct will call for the imposition of an immediate custodial term.

14.It is understandable that the applicant wishes these principles to be emphasized. 

15.However, for reasons to which we now turn, we do not think that this particular case calls for interference with the sentence imposed.  That is not to detract from the general approach we advocate to sentencing in a case of assault upon a legal officer in the execution of his or her duties.  It is, rather, a recognition of the fact that none of the sentencing principles espoused by the authorities to which we have been taken, and which we have cited, demands that the individual circumstances of a case are to be ignored.  Whatever a general sentencing policy may be, it must never be one that ignores the need for individual justice.  This is the sentiment which we sought to emphasize in HKSAR v Leung Pui Shan Criminal Appeal No. 317 of 2007, 5 February 2008, unreported:

“… sentencing is an art which must carefully be moulded not only to the category of offence but to the offender.  There is a danger of sentencing becoming over-mechanical with too little regard for unusual circumstances that might arise in relation to the commission of particular offences and too little regard to circumstances peculiar to the offender.”

16.It should go without saying that whatever the general policy, an immediate custodial term for an assault on a public officer is not an inevitable sentence that has regard only to the category of offence and no regard to the facts peculiar to its commission or to the offender.  The cases which may demand a dispensation other than imprisonment will probably be unusual, but a court that ignores the circumstances in which the assault is committed, the nature and consequences of it, and the circumstances attaching to the offender at the time of the offence and at the time of sentence, is a court performing a mechanical and not a judicial function and is a court that is not applying art to its sentencing function.

17.These sentiments are reflected in the seminal decision in relation to reviews of sentence, which has been followed regularly by the courts in this jurisdiction, namely, Attorney General’s Reference (No. 4) of 1989, above, in which Lord Lane CJ said, at 521:

“A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate.  In that connection regard must be had of course to reported cases, and in particular to the guidance given by this court from time to time in the so-called guideline cases.  However it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice.  That mercy should season justice is a proposition as soundly based in law as it is in literature.”

This case

18.Thus it is that one turns to the particular case, to ask whether there were facts of which the sentencing tribunal was seized which, despite the general approach to sentence that is encouraged for this category of offence, nonetheless renders the sentence imposed one that fell within a range that could reasonably be considered appropriate.

19.This was a case in which the respondent had pleaded not guilty.  The magistrate had therefore the opportunity of assessing the facts in considerable detail, having heard the complainant’s evidence as well as that of the respondent.

20.The magistrate had before him a medical report dated 17 January 2007 which showed that on the date of the offence, the respondent was taken by the police to Queen Mary Hospital.  The report says that the respondent has a history of hypertension for which she has been treated.  It goes on to note that during the consultation the patient had multiple delusions.  A diagnosis of delusional disorder was confirmed and a decision made that the respondent be compulsorily admitted to the psychiatric ward of Pamela Youde Nethersole Eastern Hospital for observation and treatment.  It is significant to note that she was compulsorily detained for this purpose for seven days. 

21.In the detailed reasons which the magistrate provided for his verdict and in his Reasons for Sentence, the magistrate found that:

(1)  although she was capable of thinking and of sensing objective reality, the respondent nonetheless appeared to him, at the trial, to be “under the delusion that she is being persecuted”;

(2)  the respondent did not go the offices of the Department of Justice with any assault in mind, but intending to argue her case and to express her dissatisfaction.  “I believe,” he said, “it was rather difficult for her to control her own emotion at that time.  Her act was such that she tried to talk to the staff member or to … Ms Fung and that it had gone too far at that moment.  I also believe that her then mental state caused her to fail to exercise proper control over herself”; and

(3)  the level of the fine, although seemingly low, reflected the respondent’s ability to pay.

22.When the matter came before him upon an invitation to review himself, it was said by counsel for the applicant that the sentence for such an offence would normally be an immediate custodial sentence and emphasis was placed on the suggested need to convey a message to the public.  The “very small fine”, as it was described by counsel at that hearing, would, he said “convey a wrong message to the general public.  In fact,” he added, “for anyone acting for the government in whatever capacity, or any public officer, his life, his safety in a work environment will not be safeguarded.  In that case, there will be a chain reaction.”  He invited the magistrate to impose an immediate custodial sentence.

23.The magistrate’s reaction to these submissions was to emphasize the individuality and circumstances of the case and to stress, whilst not excusing the act, that the respondent pulled Ms Fung “in a moment of desperation” when she wanted to talk to Miss Fung who, albeit understandably in the light of history, refused to talk to her.  It was, said the magistrate, a split-second matter.

24.In relation to the common assault in 2004 we have scant information about the facts of that assault.  The only information we have is that some documents were thrown at a court clerk and that no injury was sustained. 

25.We do not know whether the magistrate considered whether a hospital order under the Mental Health Ordinance might be appropriate.  It is likely that such a course was not taken because of the treatment already given on and immediately after the respondent’s date of arrest.

26.As is evident from the refrain in the applicant’s submissions to the magistrate, the applicant’s concern in this particular case is that the sentence imposed will send the “wrong message to the public”.

27.That is an understandable concern, but the public should be taken to appreciate that circumstances peculiar to the individual case may justify an apparently lenient course.  That is not to ignore the victim of an offence nor to put to one side the need for specific deterrence in certain categories of offence.  It is merely to say that each case is different and that occasionally a rounded, well-balanced, common sense and just view of the facts will correctly drive a judicial tribunal to take an exceptional course.

28.The authorities to which we have been referred do not compel one to the conclusion that in this case an immediate term of imprisonment was mandated.  Whereas Wong Pak Lam stated that “the object of any sentence is first of all to deter the offender and also other members of the public likely to commit that sort of offence,” the case was not one dedicated to an analysis of all considerations relevant to sentencing, nor is the statement one that suggests that deterrence is such a powerful factor that the facts of the offence are to be ignored.  The principle stated in Hui Man Lee, that those who attack public officers can expect no sympathy from the courts, holds good as a general proposition; but we see by reference to the facts of Hui how different the circumstances can be.  The circumstances of that case could hardly be further on its facts from this.  In So, the assault was a kick delivered to a police officer and yet, on the facts of the case, the Court of Appeal set aside the term of imprisonment that had been imposed.

29.What we have in this case is an assault on a public officer, a lawyer acting for the party opposed to the assailant in litigation.  One may start by assuming that such an offence requires immediate custodial terms.  As against that, in this case, are the facts that:

(1)  The offender was a 60 year old woman with psychiatric difficulties;

(2)  The offence was, so the court below expressly found, a split second reaction, an act of desperation accompanied by no prior intention to assault, committed in a moment of frustration when the assailant’s mental condition made it difficult for her to exercise the control she ought to have exercised;

(3)  The respondent was taken to hospital on the day of offence for treatment of her condition, described as a delusional one;

(4)  The assault itself was constituted by pulling at a collar and hair, conduct which falls at the lower end of this type of offence, although we do not in so saying minimize the upset caused to Ms Fung; and

(5)  The respondent’s conduct was visited with detention for seven days in a psychiatric hospital, in direct consequence of her mental condition when she committed that assault.

Conclusion

30.It is in our judgment impossible to conclude that those circumstances took the sentence imposed by the magistrate outside the range of sentences which he, applying his mind to all the relevant factors, could reasonably consider appropriate.

31.Accordingly, the application for review is refused.

Mr David Leung, SPP of the Department of Justice for the Applicant

Respondent in person