HKSAR v. WONG YUN WAN

bjbj sdoiz) ______________________ Before: Hon Yeung and Yuen JJA in Court Date of Hearing: 22 December 2010 Date of Judgment: 22 December 2010 Date of Reasons for Judgment: 7 January 2011 reasons for judgment Hon Yuen JA (giving reasons for judgment of the Court): Introduction The appellant (Wong Yun-wan) pleaded guilty before Deputy Judge A Yim to two charges of sending a letter threatening to murder or to kill a person and was sentenced to 10 months imprisonment. The judge adopted a starting point of 21 months for each of the charges and reduced it by 6 months because of the appellant s medical condition. The judge further reduced the sentence by one-third on account of the guilty plea to 10 months on each charge. The judge ordered the sentences to run concurrently. With leave granted on 9 December 2010, the appellant appealed against the sentence. At the end of the hearing, we dismissed the appeal and indicated that we would hand down our reasons in due course. This we now do. The Facts The appellant sent two letters, one dated 18 May 2010 and one dated 14 June 2010, to the Commissioner of Police. The contents of the letters referred to an incident that took place in 2003 when the appellant was arrested by Senior Inspector Chau in connection with a case of criminal intimidation, for which he was sentenced to 3 months imprisonment suspended for 2 years. The appellant complained of unfair and improper treatment by Senior Inspector Chau. He said he had contacted various government departments to air his grievances, but received no proper response. In the 1st letter, the appellant asked the police to take action against Senior Inspector Chau within 30 days or he would carry out his plan to kill police officers. In the 2nd letter, the applicant stated that the deadline was approaching, and yet the Commissioner of Police had not responded to the 1st letter. The appellant threatened to take all steps to take revenge, including wounding and killing innocent police officers. He stated that he would go to Police Headquarters on 23 June to meet the Commissioner of Police. On 23 June 2010, the appellant did go to Police Headquarters saying that he wanted to meet the Commissioner of Police to air his grievances towards his wrongful arrest by the police in 2003. He produced copies of the two letters as well as a letter addressed to the Chief Executive in connection with his complaints, saying that he had never received a reply from the Commissioner of Police. When told that the Commissioner of Police would not meet him, the appellant said he would ask to meet him again on 29 June 2010. The appellant further telephoned the Secretary of Security, also asking for a meeting. He said if he did not receive any response from the police, he would kill innocent police officers. After his arrest, the appellant admitted that the two letters were written and sent by him, and that the purpose was to vent his anger against Senior Inspector Chau. The appellant claimed that he would take action, but he would wait and see how the police handled his complaints first. The appellant said his grievances had caused him to suffer insomnia, poor memory and high blood pressure and that he had been receiving psychiatric treatment for nearly two years. He said he would use a vehicle to bump into police officers. Grounds of Appeal In his written submissions, the appellant complained again about Senior Inspector Chau, saying that he had abused his authority. He said he only remembered Senior Inspector Chau s name, but did not recognize him. The appellant emphasized that his complaints to various departments had not resulted in any positive response and that those departments simply shirked their responsibilities and were completely oblivious to the injustice that he had met. The appellant was adamant that he was honest and had behaved with integrity, only trying to release his discontent, anger and grievance against bureaucracy. He said he should never have been treated as a common criminal. The appellant emphasized that he had never intended to cause harm to anyone and that he was just trying to seek justice and fairness for himself. The appellant claimed he was sorry for what he did and he asked for forgiveness and leniency. Discussion The citizens of Hong Kong have a variety of avenues for redressing their grievances. These include the Independent Police Complaints Council (for complaints against individual police officers), the Ombudsman (for complaints about government services) and the courts (for judicially reviewable conduct). Citizens of Hong Kong are well aware of their civil rights and of their ability to pursue their objectives through these avenues. Depending on individual cases, the results may be favourable to the citizen or they may not. Where the results are not favourable, there are often mechanisms for appeal. Of course a citizen can also approach the press or legislators who can provide an objective perspective and often take up meritorious cases individually. In a civilized society like ours governed by the rule of law and served by a free press and responsive representatives, there is no excuse to resort to threats of violence. The Applicant had a grievance with the Housing Authority many years ago. It is not known to what extent he pursued his civil rights, but in the end he made a threat against Housing Authority staff for which he was convicted of criminal intimidation 7 years ago. He was sentenced to a term of imprisonment of 3 months suspended for 2 years. He did not appeal against conviction, so it must be taken that he accepted he was wrong to have made the threat. However instead of learning a lesson from the conviction, it would appear he transferred his anger from the Housing Authority to the police and in particular Senior Inspector Chau. He demanded the Commissioner of Police take action against Senior Inspector Chau failing which he would kill police officers whom he himself described as innocent. He later explained that his plan was to run down police officers with a vehicle. The Applicant is a taxi driver and therefore easily able to carry out that threat against unsuspecting police officers. The Applicant did not simply make one verbal threat impetuously. After one month he sent another letter, and a week later he showed he was serious by going to Police Headquarters demanding to see the Commissioner. Obviously these were not frivolous utterances and the Applicant was intent on taking action. From some of the Applicant s written submissions to this court, it is apparent that he is unwilling or unable to perceive matters objectively. He considered the sentencing judge to be biased in favour of the prosecution, when all that the judge did was to set out the summary of facts to which the Applicant himself had agreed when he pleaded guilty. The Applicant said that it was his policy to first admit and then defend . That is not a procedure permitted under Hong Kong law but the Applicant s insistence on doing it his way even at this stage reflects the obstinacy with which he pursues his subjective views. In the case of the subject-matter of these charges, he has gone to the extent of making serious threats of violence. We understand that the Applicant has a personality problem and was suffering from depression, but the psychiatric reports indicate that he did not have any psychotic illnesses, and so he was aware of and remained responsible for his actions. In the light of his repeated threats and the boldness with which he approached Police Headquarters, subsequent actions on his part could have resulted in serious consequences, not only for the persons he threatened, but also for innocent bystanders, and ultimately himself. Whilst the Applicant would be best served by being treated medically for his disorder, the courts have a duty to protect innocent people from persons who are unable to control themselves. In HKSAR v Ma Chiu Shing [2004] 2 HKLRD 974, the defendant placed contaminated food items in supermarkets on two occasions. On the first occasion he alerted the police, and on the second, he alerted the press. No one was hurt. He was charged with 2 charges under s.23 Offences against the Person Ordinance Cap.212 (attempting to administer poison) and convicted. He was sentenced to 5 years imprisonment on these s.23 offences. The defendant also wrote 3 letters threatening to kill people. In the High Court, he was sentenced to 1 year and 8 months imprisonment for each of these s.15 offences, the sentences to run consecutively to the sentence for the s.23 offences. On appeal, the Court of Appeal overturned the conviction on the s.23 offences. That left only the three s.15 charges. The court noted that the maximum sentence was 10 years imprisonment. It considered that the offences merited a heavy sentence as the threats were serious, and considering the facts surrounding the s.23 offences, the defendant did intend to harm people unless his demands were met. The Court of Appeal took a starting point of 7 years imprisonment for each of the 3 offences under s.15, and reduced it to 5 years to reflect the guilty plea, with part of the sentences to run consecutively, resulting in a total period of imprisonment of 6 years and 8 months. The facts of Ma Chiu Shing were of course more serious, but in the present case the Applicant had devised a plan which he was capable of effecting and was not afraid to disclose, and he was bold enough to go to Police Headquarters in an attempt to further his demands. In our view, the judge s final sentence of 10 months imprisonment was entirely appropriate and indeed merciful, and the appeal against sentence must be dismissed. It only remains for us to express the hope that for everyone s sake, appropriate medical treatment will be made available to the Appellant in prison, and that he will follow-up such treatment, if advised, after his release. (WALLY YEUNG) JUSTICE OF APPEAL (MARIA YUEN) JUSTICE OF APPEAL Mr Alex Lee, SADPP and Ms Jasmine Ching, SPP of the Department of Justice for the Respondent. The Appellant, in person, present. 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