HKSAR v. Lau To

CACC000209/2000

CACC 209/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 209 OF 2000

(ON APPEAL FROM DCCC 248/2000)

__________________

___________________

Coram: Hon Stuart-Moore Ag. CJHC, Mayo VP and Stock JA in Court

Date of Hearing: 19 December 2000

Date of Judgment: 19 December 2000

______________

J U D G M E N T

______________

Hon Mayo VP (giving the judgment of the Court):

1. The applicant was found guilty after a trial in the District Court before H. H. Judge Wilson of two charges of wounding contrary to s 17 of the Offences against the Person Ordinance, Cap. 212, and one count of being in possession of an offensive weapon contrary to s 33(1) of the Public Order Ordinance, Cap. 245. He also pleaded guilty to remaining in Hong Kong without the authority of the Director of Immigration. He was sentenced to 2 years imprisonment on the two wounding counts to be served concurrently, 2 years for the offensive weapon count to be served consecutively to the wounding counts and 15 months consecutive for the immigration offence making a total of 5 years 3 months imprisonment. He now seeks leave to appeal against his convictions on the first three counts and against the sentences imposed on all counts.

2. The offences arise out of the same incident. In the early hours of the morning of 4 January 2000 two plainclothes police officers were patrolling in the vicinity of Bowen Road. They saw the applicant and suspected that he might be the person about whom a complaint had been made earlier. They gave evidence that they approached him and revealed their identities.

3. The applicant took out from under his clothing the iron pipe referred to in count 3 and started belabouring the two police officers. A melee then took place. After some considerable time they managed to subdue him and another police officer arrived at the scene. All three men were taken to hospital. The Judge summarised the injuries sustained by the three men in this way:

"PW1 (who was the first police officer) had abrasions and swelling on his head, bruising and swelling and laceration wound to his right hand.

PW2 (the second police officer) had multiple scalp haematoma, three scalp lacerations, one of which required nine stitches.

The defendant had several superficial abrasions and 'tenderness'."

4. The applicant made five cautioned statements, the gist of which claimed that the officers had not revealed their identities and that he had been acting in self-defence.

5. The applicant gave evidence at his trial. He essentially repeated what he said in the cautioned statements.

6. In his prolix home-made grounds of appeal he deals with a number of peripheral issues such as alleging that he was assaulted when being conveyed in the police van to hospital. He appears to accept that the attack did take place and that he was in possession of the pipe.

7. The Judge gave convincing reasons why he accepted the police officers' evidence and rejected the applicant's. The convictions were all safe and satisfactory. There is no merit in the application for leave to appeal against conviction and it is dismissed.

8. There is also no merit whatever in the application for leave to appeal against sentence. It was an outrageous, vicious and unjustified attack upon two police officers who were performing their duties. It is indeed fortunate that they did not sustain more serious injuries than they did.

9. In this connection we have been referred to the case of R v Lee Wing [1988] 2 HKLR 227. In that case a statement is made by the Court of Appeal that an appropriate sentence where an attack has been made on a public officer with an offensive weapon which causes serious injury is 4 years imprisonment.

10. We must say at once that it is our view that such a sentence is manifestly inadequate and should not be used as guidance in future cases.

11. The sentences which were imposed in this case were very light indeed and certainly there can be no question whatever of the sentences being reduced. This application is also dismissed. As both applications are totally devoid of any merit we order that 4 months of the time which the applicant has spent in custody will not count towards his sentence.

Representation:

Mr A A Bruce, SC, SADPP & Mr Beney Wong, GC of the Department of Justice, for the respondent

Lau To, applicant in person