HKSAR v. So Shing Tai

HCMA 48/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 48 OF 2011

(ON APPEAL FROM FLCC 2748 OF 2010)

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BETWEEN

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Before: Deputy High Court Judge E. Toh in Court

Date of Hearing: 11 October 2011

Date of Judgment: 11 October 2011

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J U D G M E N T

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1.The Appellant had pleaded guilty to two charges before the learned Magistrate. Charge one was obstructing a police officer in the due execution of his duty, and Charge two was of possession of apparatus for radiocommunications without a licence. He was sentenced to two months’ imprisonment on each charge to be served consecutively, which means a total of four months’ imprisonment. He appeals against those sentences on the ground that they are manifestly excessive.

2.The facts show that on 11 November 2010 in the small hours of the morning, marine police officers saw a motorized sampan which was driven by the Appellant. Upon stopping the sampan, ID card and boat licence were produced for inspection.  The Appellant said he was going to his fish farm in Kat O and there was nothing illegal found on his sampan.

3.The Appellant did tell a marine officer that he had had alcoholic drink. When a police sergeant boarded the sampan, he heard some radio transmission sound, and found two radio communicators, one portable type, and one desktop type which were produced at Exh. P.1 and P.2, and they were on at the time. The sergeant therefore asked the Appellant if he had a licence.  The Appellant said he had none.  At that point, the sergeant heard a radio transmission sound coming from the Appellant’s back, and wanted to body search the Appellant.  The Appellant then took out a portable radio communicator, and threw it into the sea.  The sergeant attempted to stop him, but was pushed by the Appellant on the shoulder and fell.  Luckily, the sergeant did not fall into the sea but only onto the side of the boat.  He did not sustain any injury, and the Appellant threw the other two radio communicators into the sea. 

4.The Appellant said that the sergeant could not arrest him in the absence of evidence.  The Appellant was then arrested.  At great expense to the public purse, police divers fished out Exh. 1 and Exh. 2 from the sea.  The Appellant admitted to the police that Exh. 1 and Exh. 2 were the radio communicators he had thrown into the sea.

5.In mitigation, the solicitor representing the Appellant submitted that the Appellant is 46 years old, and married with a family.  When the incident happened, the Appellant’s wife had left him, and therefore he had had some alcohol to drink.  The Appellant said to his solicitor that he did not apply for a licence out of ignorance.  The Appellant had said to the sergeant that he could not arrest him in the absence of evidence.  So it clearly showed that the Appellant was not so affected by drink that he did not realize that he could not be arrested if there were no evidence, and it also threw light on what the Appellant said, that he threw the communicator into the sea only to vent his emotions, because what he said to the sergeant showed that he thought that with the destruction of that evidence, he could not be arrested.

6.The defence in mitigation had pointed out that the previous record of the Appellant although he had had three previous convictions, they were not similar and all three were minor offences dealt with by fine.  So he cannot be said to have a bad record. 

7.The learned Magistrate, who is the principal Magistrate in the Fanling Court, was of the view that this is a serious case, especially in relation to Charge one, which is obstructing police officers by intentionally, for the purpose of destroying the evidence, throwing the exhibits into the sea even though the Appellant has a clear record.  In the circumstances it would be too lenient to give a fine or community service order and it is only appropriate to impose an immediate custodial sentence. 

8.I totally agree with the learned Magistrate on this, and so I do not find that the two months’ imprisonment which the learned Magistrate imposed on the Appellant on Charge one was manifestly excessive at all.  In relation to the second charge for possession of apparatus, which is for radiocommunications without a licence.  The maximum sentence is a fine of $15,000 and two years’ imprisonment.  Mr Marray for the Appellant has submitted that the normal sentence is a fine, and he prayed in aid the 1999 case of HKSAR v LEE WAI FUN, HCMA 1104/1999 where an appellant, who had been charged with a similar offence was given a $9,000 fine.

9.We do not have any statistics for that, but Mr Chung, for the Respondent, has very fairly pointed out that he accepted that the normal sentence for this type of offence is normally a fine, and that a heavy sentences would be visited on a particular defendant if that happened to be his second offence or there are other circumstances which goes to render that charge more grave.

10.The learned Magistrate did not accept that the Appellant did not know that he had to get a licence.  The learned Magistrate correctly pointed out that the Appellant has been a fisherman, and that this charge is really to prevent people using radio communicators to do illegal activities like sea smuggling.  But, of course, Mr Marray is right in pointing out that there is no evidence that these radio communicators were used for any illegal activity.

11.So having considered the background of this case, the Appellant’s background and the normal type of sentences imposed for Charge two, I therefore do consider that two months’ immediate imprisonment is manifestly excessive for Charge two.  So I will allow the appeal against sentence in relation to Charge two and substitute a fine of $12,000 on Charge two.

12.So the Appellant’s appeal in relation to Charge one is dismissed, and the sentence of two months remain for Charge one.  And as for Charge two, his appeal is allowed.  The sentence of two months is set aside, he is fined $12,000.

Mr Chung Hung Wai, Frederick, SPP of the Department of Justice, for the HKSAR

Mr John Marray, instructed by Messrs A.M. Mui & Kwan, for the Appellant