HKSAR v. Hung Hon Yee

HCMA104/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 104 OF 2010

(ON APPEAL FROM KCCC 5878 OF 2009)

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Before : Deputy High Court Judge P. Li in Court

Date of Hearing : 15 July 2010

Date of Judgment : 15 July 2010

Date of Handing Down Reasons for Judgment : 30 July 2010

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REASONS  FOR  JUDGMENT

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1.The appellant pleaded guilty to one count of resisting arrest[1].  He was sentenced to 4 weeks’ imprisonment.  He appeals against the sentence.

2.The incident occurred when a team of police officers raided the ‘Tak Sing’ foot massage parlour at To Kwa Wan on 9 November 2009.  The appellant, who was D2 in the lower court, agreed with the following facts in the magistrate court during the plea :

“…Upon police enquiry, D2 was found being wanted for ‘failing to obey court summons’ under a traffic warrant no. TWR/2009/12417.  When PW1 declared arrest to D2 for the above offence and explained to him the detail of arrest, D2 shouted at PW1 with abusive language and appeared uncooperative.  When PW1 required him back to police station for enquiry, D2 ignored his instruction and pushed away his hand from being controlled.  Despite warnings given by PW1 and PW3, D2 acted aggressively and refused PW1 bringing him back to police station.  PW1 warned again D2 to comply with his instruction, otherwise he would arrest him for ‘resisting arrest’.  Suddenly, D2 stood up and pushed away PW1 from being arrested.  Simultaneously, D1 sitting next to D2 shouted at police loudly and raised hue and cry together with another staff.  Despite warnings given by PW1-2 and PW5, D1 ignored their instructions and rushed at PW1 to push him away. …”[2]

3.The Deputy Magistrate had considered the background of the appellant and a CSO report.  Community service was not recommended.

4.In passing sentence, the Deputy Magistrate pointed out that D2 might be over reacting and his conduct was not of the most serious kind.  He, however, stressed that ‘police officers must be protected when they are performing duties.  A deterrent sentence is apposite and an immediate custodial sentence is appropriate.’  He went on to take a starting point of 6 weeks’ imprisonment and sentenced the appellant to 4 weeks’ imprisonment after deducting two weeks for the plea[3].

5.The appellant raises one ground of appeal that the sentence was manifestly excessive.

6.Counsel for the appellant argues as follows :

(a)  The appellant is 61.  He is currently a majority shareholder of a chain of massage parlours.

(b) He was converted to Christianity for about eight years.

(c) He pleaded guilty showing that he was remorseful.

(d) He misunderstood the police allegation as he had gone through immigration checkpoint about an hour before the incident.

(e)  He had already served nine days in prison.  Re-offending is unlikely.

7.Counsel also refers me to several authorities showing divergent sentences in this offence.  I need not comment on any of them.  It is common ground that there is no tariff case.  Each case turns on its individual facts.

8.D2’s conduct was a blatant challenge of police power with no good reason.  The conduct of the police officers was appropriate in the circumstances.  The facts cited in paragraph 2 speak for themselves.  Not only was D2 uncooperative, he used abusive language and pushed away the police officer.  He showed no sign of restraint despite repeated warning from the officers.  Worse still, his conduct agitated his staff (D1) in the parlour leading to another charge of assaulting a police officer[4].  In my view, this offence was serious albeit not the worst kind.

9.As to his remorse, the probation officer commented in the CSO report :

“Nevertheless, his repetitive reoffending behavior obviously reflected that he had gained little insights into his weaknesses and made his present claimed remorse and determination to reform highly doubtful.  Taking into account defendant’s insincere attitude towards our enquiry, uncertain drug taking habit, questionable remorse, little insight into his weakness and doubtful determination to reform and inadequate familiar (familial) support, the Investigation Officer wonders CSO is an adequate means to rehabilitate him.”[5]

10.While the appellant maintains that there was some misunderstanding between him and the probation officer, I am sure his sense of remorse was limited.

11.Having considered the above, I see no point to ask for another CSO report.  I agree with the Deputy Magistrate that 4 weeks' imprisonment is appropriate.  I dismiss the appeal.

Mr Alvin Chui, Public Prosecutor, of the Department of Justice,  for the Respondent

Mr Jonathan Kwan, instructed by Messrs Littlewoods,  for the 2^nd Appellant

[1]   Contrary to s.36 (b) of the OAPO, Cap.212.

[2]   This is part of the full summary facts relevant to this appeal.  See page 7 of the appeal bundle.

[3]   Paragraphs 4-6, 8 of the reasons for sentence, page 12-13, appeal bundle.

[4]   D1 also pleaded guilty and was sentenced to 2 months’ imprisonment.

[5]   Appeal bundle, page 27.