Sit Kwan v. The Queen

CACC000218/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 218 OF 1972

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Coram: Leonard, J.

Date of Judgment: 27th April, 1972.

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JUDGMENT

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1. This appeal commenced as an appeal against conviction only; today the appellant applies for leave to appeal against sentence also. As the learned magistrate had, in the course of his Statement of Findings, dealt with some particularity with the question of sentence, having apparently been under the impression when writing them that the appeal was originally against both conviction and sentence, and as that the Crown did not oppose this application, I allowed it.

2. On the afternoon of 18th January, 1972, a party of police officers was engaged in a routine clearance of obstructions in the street in the neighbourhood of Kwun Tong. A vegetable barrow belonging to the applicant's father was causing an obstruction and he was arrested. He struggled with the police officers arresting him and the appellant went to his aid. The appellant picked up a beam scale of a Chinese type which had a metal hook attached to it. Although this scale was made an exhibit in the court below, unfortunately, as happens all too frequently, the exhibit has not been brought to court. He used the hook on the scale to hook the sleeves of the uniform of P.C.12182 and, as a result, that P.C. received severe abrasions on both wrists and received hospital treatment. He was also given three days sick leave. It does not appear from the record that the P.C. was believed that the abrasions were deliberately inflicted on him by the appellant. The learned magistrate in the court below describes the abrasions as "parellel scars still vivid and recognizable on left arm, superficial scratches on right".

3. The Sergeant in charge of the party also gave evidence. He stated that he instructed the P.C. to arrest the appellant's father, the appellant's father resisted and that during the struggle the appellant came up and attacked the P.C. This witness referred to the injuries received by the P.C. as "scratches, some severe, on his wrists".

4. The appellant made an unsworn statement and his mother gave evidence on his behalf. However, before he gave evidence, the appellant indicated that he did not wish to challenge the eivence of the Sergeant who had said that the appellant attacked the P.C. Not unnaturally the learned magistrate proceeded to conviction. I hold that there was ample evidence to enable him to do so and accordingly I dismiss the appeal against conviction.

5. After the close of the case for the defence, the appellant made a belated application for an adjournment to engage solicitors. This application was correctly refused by the learned trial magistrate. A solicitor could not have assisted on the question of the appellant's guilt or innocence. Up to this point the learned trial magistrate appears from the record to have acted with that cool neutrality that has always been the hallmark of our magistrates. Unfortunately he does not appear to have guided himself by that same neutrality thereafter. Having convicted the appellant he adjourned the case for fourteen days for a Probation Officer's report and ordered that the defendant be remanded in prison custody to await that report. He then made a most peculiar order - that the bail which had been put up as security for the appellant's attendance should not be refunded to him. In justification he stated that the question of costs would be considered at the adjournment. This was an order for which I can find no justification whatsoever. Indeed, to me it seemed to demonstrate a degree of peevishness which bordered on the vindictive. The appellant having been remanded in custody for fourteen days for a Probation Officer's report, bail had fulfilled its purpose and should there and then have been refunded to the appellant on his application. Bail is not a fund which may be kept in court to answer for the possible liability in costs of an accused person. In any event no application had been made or was to be made to the learned magistrate in respect of costs, and I am assured by Crown Counsel that it is unusual for such an application to be made.

6. The learned magistrate had, on the adjourned hearing, the advantage not only of a detailed Probation Officer's report recommending probation but also of a Social Welfare Officer employed by the Kwun Tong Christian Families Centre. It appeared from the evidence of Mr. Martin Lee, the Welfare Officer in question, that the appellant's mother was extremely concerned about the future of the appellant and had treated him over-strictly. Having heard the solicitor for the appellant the learned trial magistrate made reference to the case of Reg. v. Sheen⁽¹⁾. The facts of that case can of no possible relation to the facts of this for therse the court was considering an appeal by a person from a sentence of 5 1/2 years' imprisonment for two robberies with violence and two assaults on police officers.

7. Having heard the solicitor for the appellant, the learned magistrate said:

"In my view, despite paying full attention to the fact that the defendant is of previous good character, his youth and all the circumstances of this case a prison term is the only possible sentence in this case."

The offence is an excepted offence and is therefore not one to which the provisions of s.109A of the Criminal Procedure Ordinance apply. That, however, is not to say that a prison offence is mandatory. The learned magistrate referx to his "certain knowledge that no other sentence would be appropriate". I am completely at a loss to understand how he arrived at this "certain knowledge". If it be an opinion as distinct from knowledge and I think it must be I regret that I differ from it.

8. In this case, the appellant, a boy of 18 years with a clear record, was wrongly going to his father's assistance when his father was engaged in a struggle with the Police. Admittedly the Sergeant does say that the appellant "attacked" the P.C. The manner and nature of the attack was not fully investigated but he undoubtedly used the hook of a beam scale to catch the sleeve of a police officer. There is no evidence whatsoever that he intended to wound the police officer, inded there is no evidence that he intended to do anything else but to pull the police officer's hand away from his father. I should like to make it clear immediately that this Court stands behind this magistrate and all other magistrates in condemning and being prepared to deal unrelentingly with attacks on police officers. It was undoubtedly very wrong for the appellant to go to his father's assistance in the manner in which he did. It was deserving of punishment and indeed, possibly even of a short term of imprisonment, but a sentence of six months' imprisonment was clearly not appropriate. It was manifestly excessive and wrong in principle and was not supported by the Crown. The question then is what sentence should be substituted for it.

9. I am told that the appellant has already spent approximately one month in detention and a sentence that he be imprisoned until the rising of the Court is appropriate. However, it is clear to me from the Probation Officer's report that probation may well be of considerable assistance to him, not only in the formation of his character but also in his obtaining employment. Accordingly, the appellant is placed on probation for a period of one year from today's date and the sentence of six months' imprisonment is quashed.

Representation: