HKSAR v. Wan Hong Kin

[English Translation]
HCMA 283/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 283 OF 2010

(ON APPEAL FROM TWCC 540 OF 2010)

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Coram: Hon. Barnes J

Date of Hearing: 27 May 2010

Date of Judgment: 27 May 2010

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JUDGMENT

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1.The Appellant pleaded guilty to a charge of “assaulting a police officer”, contrary to s.63 of the Police Force Ordinance, Cap. 232, Laws of Hong Kong, before a Principal Magistrate who then convicted and sentenced him to detention in training centre. The Appellant now appeals against that order.

Facts of the Case

2.The Principal Magistrate noted the facts admitted by the Appellant as follows:

“2. The facts of the case reveal that sometime after 3 a.m. in the small hours of 14 February 2010, while two police officers were executing their duties inside a convenience store at Kwai Chung Estate, the defendant wanted to enter the store but his request was refused by the police officers. The Defendant became emotional. He twice pushed away a police officer’s hand and pushed towards his chest despite repeated verbal warnings from the police officer. Finally the police officer declared arrest on him, but the Defendant continued to put up resistance. Eventually both of them bumped against a flowerbed. After the incident the police officer was sent to hospital for examination during which it was confirmed that he had multiple abrasions over his right elbow and right knee. Accordingly the injured police officer was granted 4 days’ sick leave.”

Reasons for Order

3.The Principal Magistrate stated that the Appellant’s conduct “was direct provocation towards the authority of law enforcement officers, making it difficult for the latter to discharge their duties effectively”.  He took the view that “the most serious of all is not about the extent of seriousness of the actual bodily contact between the two parties, instead it is about the deliberate interference by the Defendant who at the time was fully aware of the fact that the police officer was executing his duties”.

4.The Principal Magistrate, having set out the maximum penalty of the offence: a fine of $5,000 and 6 months’ imprisonment, and having considered the Appellant’s background, Probation Officer’s Report, Detention Centre Report, Training Centre Report, Drug Addiction Treatment Centre Report, Rehabilitation Centre Report and Community Service Order Report, took the view that the case in this appeal conformed to the guidelines laid down in the case of WONG Chun Cheong[1]. Then he had this to say:

“11. I also understand that there is no fixed term for a training centre order; given the fact that the Defendant is under the age of 21, (the detention period), therefore, will not be less than 6 months [namely the same duration of the maximum penalty of the offence]. I must, however, point out here that a training centre is basically different from a penal institution in terms of visions, objectives and facilities provided. The former is mainly counselling-oriented and will also provide vocational training, to be followed by a long period of supervision upon discharge, and will help inmates acquire basic life skills in order to facilitate them to re-integrate into our society. On the contrary, a penal institution is purely punishment-oriented and does not offer comprehensive planning to assist prisoners in rehabilitation. There is no comparison between the two options. Nor can the detention period in a training centre be regarded as an equivalent to imprisonment.

12. For the above reasons, I order that that Defendant be admitted to a training centre.”

Ground of Appeal

5.The ground of appeal advanced by Mr. Richard Wong, counsel appearing on behalf of the Appellant, is that given the maximum penalty of the offence being a fine of $5,000 and 6 months’ imprisonment, the sentence imposed by the Principal Magistrate on the Appellant to be admitted to a training centre is far above the normal sentence for the offence.  Hence the sentence is manifestly excessive and erroneous in principle.  Mr. Wong cites the case of WONG Chun Cheong in support of his argument.

Respondent’s Reply

6.Miss Rosa Law, public prosecutor appearing on behalf of the Respondent, also cites the case of WONG Chun Cheong.  She submits that on the facts of the case and the Appellant’s background, a training centre order is not manifestly excessive or contrary to sentencing principle.

Discussion

7.In the present case, WONG Chun Cheong has been cited by both the Principal Magistrate and counsel for the parties.

8.In WONG Chun Cheong， Ribeiro PJ, gave the following guidelines:

“… the proper approach of a court to the making of training centre orders may be summarised as follows:

(1) The court should first be satisfied that the threshold requirements are met, i.e., that the offence is punishable with imprisonment, and that the offender is aged between 14 and 21;

(2) The court should then consider whether in the case at hand, the interest of the community requires that the rehabilitative approach should give way to a punitive or deterrent sentence. If so, the training centre option should not, save in exceptional cases, be adopted;

(3) If it is in the interest of the community to adopt a rehabilitative approach, then the court must have regard to the offender’s character and previous conduct, as well as the circumstances of the offence in deciding whether it is expedient that he should undergo a period of training in a training centre for his reformation and for the prevention of crime;

(4) Where the circumstances of the offence are such that a training centre order would be too lenient, the court is entitled to reject that option notwithstanding that the offender would otherwise be regarded as a suitable candidate for training;

(5) Similarly, where the offence committed is minor and would not otherwise call for a custodial sentence, detention in a training centre would, save in exceptional cases, be inappropriate, notwithstanding the offender’s suitability as a candidate for training.”

9.In WONG Chun Cheong, the appellant in the case participated in a lion dance in a public place without obtaining a permit beforehand.  The maximum sentence of the relevant offence is a fine of $2,000 and imprisonment for 6 months.

10.In giving the guidelines, the Court of Final Appeal never linked up the maximum period of detention in a training centre [generally from 18 months to 3 years] to the maximum sentence of the offence concerned.  In other words, while all the circumstances have met the criteria set out in WONG Chun Cheong, a court is still entitled to make a training centre order even though the maximum sentence of the offence concerned is lower than the period of detention under a training centre order.

11.In the present case, what I have to consider is whether the order made by the Principal Magistrate is manifestly excessive or contrary to principle.

12.In my judgment, the crux of the case lies on item (3) of the above criteria.  There is no doubt that given the background of the Appellant ---- 19 years of age, loose parental supervision, unsatisfactory academic performance, undisciplined life style, association with unlawful elements, drug abuse, previous imprisonment ---- it must be favourable to the Appellant’s reformation and to the prevention of crime if he can receive guidance and undergo a period of training in a training centre.  The question is whether “the circumstances of the offence” have met the criteria for the making of a training centre order.

13.The offence committed by the Appellant, namely, assaulting a police officer, is of course a serious one.  Usually immediate custodial sentence is inevitable.  Nonetheless, the offence of “assaulting a police officer” may take place in a great variety of circumstances, some of which are very serious while some are not that serious.

14.Very often, the offence of assaulting a police officer is committed after an offender has committed other offences.  For instance, in Ho Chak Yin[2], (the appellant), after having been arrested by the police for disorderly conduct, kicked a police officer; or in So Kam Lok[3], (the appellant), while in police detention, assaulted a police officer who escorted him for “fingerprinting” and released one of his handcuffs; or in Ibarra Oliva Fernandez[4], (the appellant) while in detention caused water in a cup to spill out over a police officer.

15.Before the court hearing commenced, Mr. Wong also handed up to the court for my reference the case of Yeung Ki Lau[5] which arose because a female colleague of the appellant spit into a garbage bag, but the appellant did not know that it was against the law for his female colleague to have done so.  Subsequently the incident in which the appellant assaulted a supervisor of the Food and Environmental Hygiene Department took place.  The appellant in the case was sentenced to detention in a training centre.  The appeal was dealt with by me.  I set aside the training centre order and varied the sentence by ordering that the appellant be released immediately.

16.The Appellant in the present case did not commit any offence at the outset.  When the police officer was executing his duties in the convenience store concerned, the Appellant, who merely wanted to enter the convenience store, became emotional as a result of his request having been refused.  It is in such circumstances that he pushed away the police officer.  When the police officer arrested the Appellant, the Appellant further struggled with the police officer and both fell down.  The fact that the Appellant frankly pleaded guilty to the charge indicates that he is remorseful.  In the light of the facts of the present case, a short period of imprisonment is sufficient to reflect the Appellant’s culpability.

17.In my judgment, having taken into account all the circumstances in which the Appellant assaulted the police officer, the present case does not meet the criteria set out in Wong Chun Cheong for imposing a training centre order on the Appellant.

18.In my opinion, the sentence of a training centre order is manifestly excessive and does not meet the criteria in Wong Chun Cheong.  It is therefore contrary to principle.

19.I have been informed that the Appellant has been held in custody for 3 months.  In my view, the appropriate approach is to set aside the training centre order and order that the Appellant be released immediately.

Richard Wong, instructed by Bobby Tse & Co., assigned by the Director of Legal Aid, for the Appellant.

Rosa Law Sum-yee, Public Prosecutor of the Department of Justice, for the HKSAR.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.