SJ v Au Nok Hin [2022] 2 HKLRD 1266, [2021] HKCA 554

Robert Pang SC leading Michael Chai represented the respondent in SJ v Au Nok Hin [2022] 2 HKLRD 1266, [2021] HKCA 554.

D was convicted after trial of two charges of assaulting a police officer in the execution of his duty, contrary to s.63 of the Police Force Ordinance (Cap.232). On the evening in question, there had been a protest against the proposed amendments to the Fugitive Offenders Ordinance (Cap.503) in Tsim Sha Tsui and some protestors had dispersed along Nathan Road towards Mong Kok. D was amongst a crowd at a junction of Nathan Road at Yau Ma Tei. The police had formed a cordon and were attempting to remove the crowd from the road. A legislative councillor standing at the front of the crowd had attempted to start a dialogue with the commander of the police. When the police decided to charge forwards and disperse the crowd, D moved to the front of the crowd and demanded that the police commander come forward, using a loudspeaker. The police proceeded to charge forward and D shouted at them, including calling them “black cops”. One policeman who was standing in front of D pushed forward with his transparent long shield and D used the base of his microphone to knock forcefully at the shield three times, causing alarm to the policeman. This formed the basis of Charge 1. Subsequently, D used a loudspeaker to speak loudly next to the ear of a police superintendent who was dealing with the media at the time, and continued to do so despite repeated warnings to stop. This formed the basis of Charge 2. D was a first offender, a university lecturer and at the time a legislative *1267 councillor. In sentencing D, the Trial Magistrate adopted the recommendation in the community service order report and ordered him to perform 140 hours of community service. The Secretary for Justice (the SJ) applied, unsuccessfully, to the Trial Magistrate for a review of the sentence. The SJ then applied for a review of sentence to the Court of Appeal.

Held, allowing the SJ’s application for a review of sentence, setting aside the community service order, and imposing a sentence of 9 weeks’ imprisonment, that:

• (1) D’s sentence was wrong in principle and manifestly inadequate. The gravity of the offences and D’s high culpability meant that the usual immediate custodial sentence was appropriate. At the time, police were attempting to restore road traffic and prevent the road blockage escalating into violence, and D’s behaviour was unacceptable. There was a risk that D would further provoke the crowd or the police. Further, D had committed the offences with malice, in front of the police cordon, and assaulted two police officers within a short time. With regard to Charge 2, D had not been provoked or confronted by the superintendent whose temporary hearing loss could not be described as a minor injury. D’s submissions regarding his culpability were not substantiated (Secretary for Justice v LHY [2021] HKCA 155, Secretary for Justice v Poon Yung Wai [2021] HKCA 510, HKSAR v Lee Ping Hei[2022] 2 HKLRD 336 applied). (See paras.28-42.)
• (2) The Trial Magistrate erred in principle in several aspects. She had not explained why the usual sentence of immediate imprisonment, with its punitive and deterrent aims, was not applicable to D. D had not shown any genuine remorse in relation to the offences. The recommendations of the probation officer in the community service order report had been adopted, without elaboration, despite it being very brief and only focusing on D’s background and personal circumstances. In light of the gravity of D’s offences, a community service order was inappropriate even if D was suitable for such a sentence (Secretary for Justice v Wong Chi Fung [2018] 2 HKLRD 699 applied). (See paras.43-48.)
• (3) In the circumstances, a starting point of 4 weeks’ imprisonment for Charge 1 and 10 weeks’ imprisonment for Charge 2 was appropriate. These sentences should run consecutively, but taking into account the principle of totality, 2 weeks out of the sentence for Charge 1 should run concurrently with the sentence for Charge 2. The sentence of 12 weeks should be further reduced by 3 weeks to a total of 9 weeks to take into account the fact that this was an application for a review of *1268 sentence and D had already completed 105 hours and 15 minutes of community service. (See paras.49-50.)

[The above is excerpted from the headnote to the report in HKLRD.]