R. v. Tam Man Kwong

HCMA001217/1995

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL
NO. 1217 OF 1995

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Coram : Hon Duffy, J. in Court

Date of hearing : 26 January 1996

Date of handing down judgment : 2 February 1996

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J U D G M E N T

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Duffy, J.:

1. This was an appeal against a sentence of six months for assaulting a police officer. The facts were that just before 2 p.m. on 8th July 1995, a group of police officers on foot patrol saw the appellant sitting in his taxi injecting drugs into his arm. They approached to investigate and revealed their identities. As one of the officers tried to get into the taxi, he was pushed by the appellant, who then started his taxi and drove away. The police officer was still partly inside the taxi but the appellant did not stop his car but drove it slowly towards a crash barrier which was at the entrance to Kai Tsui Court where it had been parked. The officer managed to extricate himself from the taxi and eventually there was a chase and the taxi was stopped and the appellant was arrested. He was originally charged with reckless driving as well as assaulting the police officer. In his Reasons for Sentence the learned Magistrate said this :

"I have decided that the case was a serious case. The root of the problem was no doubt because the Appellant was a drug addict. But the way he tried to escape, namely, by pushing PW1 and drove away dragging PW1 along could result in very serious injuries to PW1."

With respect to the learned Magistrate, the evidence does not support the view that there was any danger of any serious injury to the constable. Later on, the learned Magistrate said :

"I am aware that the charge is assaulting police officer and not possession of dangerous drug but I have decided to look to the root of the problem, namely, drugs, and sentence to that effect."

That, once again with respect to the learned Magistrate, was not the proper basis upon which to sentence the appellant in this case. The assault on the officer had been a minor one in effect and I take from the recorded evidence in this case that there was very little risk of any injury to the officer by the appellant driving away which he did "slowly". It was my view, therefore, that the sentence of six months imprisonment was excessive, and as the appellant had already served a considerable proportion of that, I allowed the appeal so that he could be released immediately.

Representation:

Miss Agnes Chan, S.C.C., for Crown

Mr Michael Poll (D.L.A.) for Appellant